It is with some chagrin that I write this post. I fell for the very thing that I have warned my clients about for decades; “Read [regulation name] carefully and NEVER make assumptions, and if you don’t know something, ask someone who does!” Here I am now having to admit that I thought the GDPR was only about EU citizens.
The WORD ‘citizen’ never even appears in the Regulation. Not once. In fact, I’ll go so far as to say that it’s not even about EU residents, because that word never appears in the Regulation either. Neither of these words is what GDPR means by “in the Union“.
I take some very limited solace from the fact that I have never claimed to be a privacy expert, but my ongoing mission of pushing everyone to actually read the GDPR carefully makes me something of a hypocrite. So apologies for that, I should have known better.
But even now that I have read the relevant Recitals and Articles, and asked real experts for guidance, I am still only able to make assumptions. I know that somewhere, someone(s) knows exactly what all of this means in practice (and precedent) as there is very little ‘arbitrary’ about the law. Hopefully these someone(s) jump in at the supervisory authority level.
So the real point of this blog is NOT to impart knowledge, or instruct, I am unqualified to do so. It is to gather feedback, or even opinion on the below interpretation(s). And yes, I have reached out to both the ICO and Art. 29 WP for clarity, but I doubt I’ll get much back anytime soon.
[Note: I won’t name the people who have provided the following guidance (unless they want me to), but I thank them for it. That said, if I’m still way off the mark the blame is entirely my own.]
First, the KNOWN Facts:
- Nowhere in the GDPR, or any referenced document [of which I am aware], are the phrases ‘data subject’ and ‘natural person’ tied to ‘EU citizenship’ or even ‘EU residency’;
- Recital 2 states – “The principles of, and rules on the protection of natural persons with regard to the processing of their personal data should, whatever their nationality or residence, respect their fundamental rights and freedoms, in particular their right to the protection of personal data. […]” – [this is, after all, a human right];
- Recital 14 states – “The protection afforded by this Regulation should apply to natural persons, whatever their nationality or place of residence, in relation to the processing of their personal data. […]” – [it does not matter who or where they are];
- Recital 22 states; – “Any processing of personal data in the context of the activities of an establishment of a controller or a processor in the Union should be carried out in accordance with this Regulation, regardless of whether the processing itself takes place within the Union.” – [a business established in the Union can [with caveats] process the data anywhere in the world, GDPR still applies];
- The phrase – “[…] in the Union […]” appears frequently in relation to scope and/or applicability – [i.e. regardless of nationality and location];
- Article 3(1) states – “This Regulation applies to the processing of personal data in the context of the activities of an establishment of a controller or a processor in the Union, regardless of whether the processing takes place in the Union or not.” – [regardless of 4. above, GDPR still applies]; and
- Article 3(2) states – “This Regulation applies to the processing of personal data of data subjects who are in the Union by a controller or processor not established in the Union, where the processing activities are related to […]” – [applies to non-EU establishments if they ‘target’ people in the Union]
Now, the Assumed ‘Facts’:
- If your personal data is collected and processed while you are physically IN the Union, and Article 3(1) or 3(2) apply, it does not matter what your nationality is, nor does it matter where you live normally. GDPR applies.;
Scenario: A US citizen is on holiday in the UK and orders something from an e-commerce merchant ‘established’ in the Union. The site collects personal information. GDPR applies.
- For processing of personal data outside of Article 3(1) and 3(2), it doesn’t matter whether you’re an EU citizen or not, GDPR does NOT [necessarily] apply;
Scenario: Someone ‘in the Union’ orders online from a merchant based in the US, who has made no effort whatsoever to market/aim their services to anyone outside of the US. All payments must be in USD. Just because they agree to ship the merchandise to the EU does not, by itself, put the merchant ‘in-scope’ for GDPR, even if they do collect personal data.
- Even if you are not ‘in the Union’, the processing of your personal data by an establishment whose activities provide the context for the processing are in the Union, is in scope for the GDPR;
Scenario: A citizen, including non-EU, is on holiday in the US and orders online from an e-commerce merchant ‘established’ in the Union. GDPR applies.
In the end it’s becoming clear that being an EU citizen does not give you rights anywhere outside of the boundaries of Union law. It is also clear that regardless of your nationality, or where you live, doing business with Union-based organisations may give you rights that it’s quite possible you are not receiving in your own country (especially in the US).
And not that I’m particularly bright, but for me to make such a fundamental mistake in interpretation further supports my contention that you should only ever take guidance from proven privacy experts. This is just too important to rely on people who have only recently jumped on the bandwagon.
Again, I am not saying that any of my assumptions/interpretations are facts. I actually expect to be corrected. About the only benefit you can get from this is you should now have your own questions to ask.
[If you liked this article, please share! Want more like it, subscribe!]