- Anonymization removes personal reference if identification is no longer possible with reasonable effort (relative standard).
- GDPR takes into account “any means” that could reasonably be used for identification (Recital 26).
- Pseudonymization considers personal data from the perspective of those without a key; it remains within the scope of the GDPR.
- Data protection rights differ from personal rights: data protection fictitious infringement, the burden of justification and proof lies with the infringer.
Anonymization in data protection law…
Anonymization refers to the process by which data is changed in such a way that it is no longer possible to identify the person concerned. However, the standard is not absolute: the decisive factor is that the personal reference can no longer be established with reasonable effort. This follows from the definition of “personal data”: anonymization is the process that results in a specific data no longer falling under the legal definition of personal data. However, a relative standard also applies under the GDPR, as can be seen in recital 26 in particular:
In order to determine whether a natural person is identifiable, the following should be considered All means taken into account by the person responsible or by another person. are likely to be used according to general judgmentto identify the natural person directly or indirectly.
Consequently, this relative measure applies (cf. here) also applies to anonymization (also in Swiss data protection law; for the concept of personal data, see the Logistep decision and for anonymization the decision VPB 70.73).
For the Pseudonymization (Art. 4(5) GDPR), the same applies in principle, but the perspective is different: whether a data is personal is not considered here in the abstract, but from the perspective of specific individuals -. for that person, which does not have the key, the personal data is in any case provisionally anonymous (which, in contrast to anonymization, does not yet lead out of the scope of the GDPR).
… and in the right of personality
This applies in data protection law – but in media reporting, a different idea of anonymization applies. The Press Council recently had to deal with this (not for the first time) (Opinion 32/2016):
On November 25, 2015, the “Beobachter” published a focus on the topic of anabolic steroids. On nine pages, the magazine described how large this market was, showed the connection with the growing fitness industry, and provided information about the dangers of anabolic steroids and other drugs. Two text sections illustrated, based on an indictment, the methods used by a dealer.
This man, listed as an example, complained to the Press Council: He had not been anonymized enough in the article, his environment had been able to recognize that he was meant. The Press Council rejects this objection: Since the “Beobachter” changed the first name and only mentioned the first letter of the last name, it sufficiently respected the privacy of the complainant. Thus, at most, the closest environment could still recognize who it was, but not third parties who only learned of the event through the media.
[…]
The reason for this, however, is not – or at least not solely – that a public interest is assumed in the activities of the media and consequently a different standard is applied. Rather, there is a conceptual difference between the right to data protection and the general right to privacy:
- A Violation of personality presupposes a certain intensity of interference or, to put it another way, a concrete impairment that can only be determined on the basis of the circumstances and in the assessment of which, for example, the social adequacy of the behavior under review must be taken into account (in other words, certain impairments must be accepted as unavoidable in the close social environment).
- This is in the Data protection law differently: in the event of a violation of the processing principles, a violation of personality is not only presumed but fakedas can be seen in Art. 12 (2) FADP. What is still acceptable in personality law is not necessarily so in data protection law, because a violation occurs more quickly and admissibility therefore depends on justification. So there is no gray area here on the factual level – only in the area of justification, which may materially amount to the same thing; but the burden of proof for the facts leading to justification lies here not with the infringed party, but with the infringer. For this reason, among others, the question of the relationship between data protection law and the general right of personality in the media is an important one, and in my opinion data protection law should apply to the media (cf. this unit).