GDPR拆解

前言：

GDPR中专有一部分为名词解释，准确掌握相关名词的含义将有助于对GDPR内涵的准确理解。

概要：

依据个人理解，GDPR名词解释可以分为下述几类：

1、数据定义类

主要定义了（1）个人数据和（2）数据处理。

个人数据是与可识别自然人相关的任何数据，而数据处理则是对个人数据进行的任何或一系列操作。

2、数据处理技术类

主要定义了（3）处理限制，（4）识别分析，（5）假名化机制，（6）数据存档系统。

处理限制是而为了限制数据将来处理而作的标记，识别分析是为了分析和预测而对个人数据进行处理，假名化机制是为了对数据做出匿名隐私保护处理，数据存档系统则是数据的集合、存储。

3、数据所涉主体类

主要定义了（7）数据控制者，（8）数据处理者，（9）数据接收者，（10）第三方。

数据控制者是控制的主要是个人数据处理的“目的和方式”（区别于数据主体，数据主体是真正的拥有者）；数据处理者系代表数据控制者进行数据处理；数据接收者是个人数据的“披露对象”；而第三方指的是除了数据主体、数据控制者、数据接收者及因授权而处理数据的人之外的纯粹的“第三人”。

4、数据隐私保护概念

主要定义了（11）数据主体的同意，（12）个人数据泄露。

数据主体的同意要求数据主体依据其个人意愿，“自由、明确、知情并清楚”地通过“陈述或积极行为”来表示对数据处理的同意；个人数据泄露则系个人数据被“意外或非法的销毁、丢失、修改、未经授权的披露或访问”，不难理解。

5、数据类别

主要定义了（13）基因数据，（14）生物特征数据，（15）健康数据。

基因数据偏向于“先天继承和后天获得”的基因特征数据（更内化），生物特征数据更偏向身体、生理或行为特征（比如面部图像或指纹数据）（更外化），而健康数据则特指到健康的范畴。

6、与数据相关商事概念

主要定义了（16）主要营业场所，（17）代表人，（18）企业，（19）企业集团，（20）公司约束规则。

核心定义为主要营业场所。如何判断主要营业场所？首先，看数据控制者在EU境内是否存在管理中心，如有，则认定其视其为主要营业场所。其次，看对于个人数据处理的目的和方式的决策是否是在EU境内的另一营业场所作出，且该场所具有执行决策的权力，如是，则优先认定其为主要营业场所；再次，如果在欧盟没有管理中心，则将其在EU境内受到GDPR约束的处理活动为主要活动的营业场所视为主要营业场所。

代表人代表的是数据控制者或数据处理者；企业及企业集团作一般商事意义的理解即可。

公司约束规则是指要遵守的个人数据保护政策。

7、与数据相关监管概念

主要定义了（21）监管机构，（22）有关监管机构，（23）跨境处理，（24）关联及合理的异议，（25）信息社会服务，（26）国际组织。

监管机构特指根据GDPR51条（每个成员国专门成立的）建立的监管机构，而有关监管机构则可以理解为除此之外的监管机构。跨境处理可以是跨多个成员国多个营业场所，也可以是位于单一场所但其活动影响到多个成员国的数据主体。关联及合理的异议是对提异议的要求，“关联及合理”。

引文：

Art. 4 GDPR Definitions[1]

For the purposes of this Regulation:

1. ‘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;

2. ‘processing’ means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction;

3. ‘restriction of processing’ means the marking of stored personal data with the aim of limiting their processing in the future;

4. ‘profiling’ means any form of automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person, in particular to analyse or predict aspects concerning that natural person’s performance at work, economic situation, health, personal preferences, interests, reliability, behaviour, location or movements;

5. ‘pseudonymisation’ means the processing of personal data in such a manner that the personal data can no longer be attributed to a specific data subject without the use of additional information, provided that such additional information is kept separately and is subject to technical and organisational measures to ensure that the personal data are not attributed to an identified or identifiable natural person;

6. ‘filing system’ means any structured set of personal data which are accessible according to specific criteria, whether centralised, decentralised or dispersed on a functional or geographical basis;

7. ‘controller’ means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data; where the purposes and means of such processing are determined by Union or Member State law, the controller or the specific criteria for its nomination may be provided for by Union or Member State law;

8. ‘processor’ means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller;

9. 1‘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. 2However, public authorities which may receive personal data in the framework of a particular inquiry in accordance with Union or Member State law shall not be regarded as recipients; the processing of those data by those public authorities shall be in compliance with the applicable data protection rules according to the purposes of the processing;

10. ‘third party’ means a natural or legal person, public authority, agency or body other than the data subject, controller, processor and persons who, under the direct authority of the controller or processor, are authorised to process personal data;

11. ‘consent’ of the data subject means any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her;

12. ‘personal data breach’ means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed;

13. ‘genetic data’ means personal data relating to the inherited or acquired genetic characteristics of a natural person which give unique information about the physiology or the health of that natural person and which result, in particular, from an analysis of a biological sample from the natural person in question;

14. ‘biometric data’ means personal data resulting from specific technical processing relating to the physical, physiological or behavioural characteristics of a natural person, which allow or confirm the unique identification of that natural person, such as facial images or dactyloscopic data;

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;

16. ‘main establishment’ means:

1. as regards a controller with establishments in more than one Member State, the place of its central administration in the Union, unless the decisions on the purposes and means of the processing of personal data are taken in another establishment of the controller in the Union and the latter establishment has the power to have such decisions implemented, in which case the establishment having taken such decisions is to be considered to be the main establishment;

2. as regards a processor with establishments in more than one Member State, the place of its central administration in the Union, or, if the processor has no central administration in the Union, the establishment of the processor in the Union where the main processing activities in the context of the activities of an establishment of the processor take place to the extent that the processor is subject to specific obligations under this Regulation;

17. ‘representative’ means a natural or legal person established in the Union who, designated by the controller or processor in writing pursuant to Article 27, represents the controller or processor with regard to their respective obligations under this Regulation;

18. ‘enterprise’ means a natural or legal person engaged in an economic activity, irrespective of its legal form, including partnerships or associations regularly engaged in an economic activity;

19. ‘group of undertakings’ means a controlling undertaking and its controlled undertakings;

20. ‘binding corporate rules’ means personal data protection policies which are adhered to by a controller or processor established on the territory of a Member State for transfers or a set of transfers of personal data to a controller or processor in one or more third countries within a group of undertakings, or group of enterprises engaged in a joint economic activity;

21. ‘supervisory authority’ means an independent public authority which is established by a Member State pursuant to Article 51;

22. ‘supervisory authority concerned’ means a supervisory authority which is concerned by the processing of personal data because:

1. the controller or processor is established on the territory of the Member State of that supervisory authority;

2. data subjects residing in the Member State of that supervisory authority are substantially affected or likely to be substantially affected by the processing; or

3. a complaint has been lodged with that supervisory authority;

23. ‘cross-border processing’ means either:

1. processing of personal data which takes place in the context of the activities of establishments in more than one Member State of a controller or processor in the Union where the controller or processor is established in more than one Member State; or

2. processing of personal data which takes place in the context of the activities of a single establishment of a controller or processor in the Union but which substantially affects or is likely to substantially affect data subjects in more than one Member State.

24. ‘relevant and reasoned objection’ means an objection to a draft decision as to whether there is an infringement of this Regulation, or whether envisaged action in relation to the controller or processor complies with this Regulation, which clearly demonstrates the significance of the risks posed by the draft decision as regards the fundamental rights and freedoms of data subjects and, where applicable, the free flow of personal data within the Union;

25. ‘information society service’ means a service as defined in point (b) of Article 1(1) of Directive (EU) 2015/1535 of the European Parliament and of the Council (¹);

26. ‘international organisation’ means an organisation and its subordinate bodies governed by public international law, or any other body which is set up by, or on the basis of, an agreement between two or more countries.