The Court of Justice of the European Union (CJEU) gave its judgment in Case C-434/16 Nowak on 20 December 2017, and it is significant from several points of view:
- It provides a good summarized description of what constitutes “personal data”, referring to both objective and subjective information, regardless of its sensitivity, and it also details what the “related to” criterion from the legal definition of personal data means;
- It *almost* departs from its YS jurisprudence on the concept of personal data;
- It applies the interpretation that the Article 29 Working Party gave to the “related to” criterion in its Opinion on personal data from 2007, highlighting thus the weight that the interpretation of data protection law given by the European DPAs might have;
- It establishes that written answers submitted by a candidate during an exam are personal data of the candidate (this is relevant for all education services providers);
- It also establishes that the questions of the exam do not fall in the category of “personal data” – hence, not the entire exam script is considered personal data, but only the answers submitted by the candidate;
- It establishes that the comments reviewers make on the margins of one’s written answers to an exam are personal data of the person being examined, while also being personal data of the reviewer;
- It establishes that exam scripts should only be kept in an identifiable form only as long as they can be challenged.
This comment looks closer at all of these findings.
Facts of the Case
Mr Nowak was a trainee accountant who requested access to his exam script from the Institute of Chartered Accountants of Ireland (CAI), after failing the examination. He first challenged the results of the exam with no success. He then submitted a subject access request to the CAI, asking to receive a copy of all his personal data held by the CAI. He obtained 17 documents, but the exam script was not among them.
Mr Nowak brought this to the attention of the Irish Data Protection Commissioner (DPC) through an email, arguing that his exam script was also his personal data. The DPC answered by email that exam scripts “would not generally constitute personal data”. Mr Nowak submitted then a formal complaint with the DPC against the CAI. The official response of the DPC was to reject the complaint on the ground that it is “frivolous or vexatious” (the same reason used to reject the first complaint of Max Schrems challenging the EU-US Safe Harbor scheme).
Mr Nowak then challenged this decision of the Irish DPC in front of the Circuit Court, then the High Court and then the Court of Appeal, which all decided against him. Finally, he challenged the decision of the Court of Appeal at the Supreme Court who decided to stay proceedings and send questions for a preliminary ruling to the CJEU, since the case required interpretation of EU law – in particular, how should the concept of “personal data” as provided for by EU Directive 95/46 be interpreted (a small procedural reminder here: Courts of last instance are under an obligation to send questions for a preliminary ruling to the CJEU in all cases that require the interpretation of EU law, per Article 267 TFEU last paragraph).
The Supreme Court asked the CJEU two questions (in summary):
- Is information recorded in/as answers given by an exam candidate capable of being personal data?
- If this is the case, then what factors are relevant in determining whether in a given case such information is personal data?
Pseudonymised data is personal data
First, recalling its Breyer jurisprudence, the Court establishes that, for information to be treated as personal data, it is of no relevance whether all the information enabling the identification of the data subject is in the hands of one person or whether the identifiers are separated (§31). In this particular case, it is not relevant “whether the examiner can or cannot identify the candidate at the time when he/she is correcting and marking the examination script” (§30).
The Court then looks at the definition of personal data from Directive 95/46, underlying that it has two elements: “any information” and “related to an identified or identifiable natural person”.
“Any information” means literally any information, be it objective or subjective
The Court recalls that the scope of Directive 95/46 is “very wide and the personal data covered … is varied” (§33).
“The use of the expression ‘any information’ in the definition of the concept of ‘personal data’ … reflects the aim of the EU legislature to assign a wide scope to that concept, which is not restricted to information that is sensitive or private, but potentially encompasses all kinds of information, not only objective but also subjective, in the form of opinions and assessments, provided that it ‘relates’ to the data subject.” (§34)
Save this paragraph, as it is a new jurisprudential source of describing what constitutes personal data – it is certainly a good summary, in line with the Court’s previous case-law (see an excellent overview of the Court’s approach to the definition of personal data here, p. 40 – 41). It makes clear that, for instance, comments on social media, reviews of products/companies, ratings and any other subjective assessments are personal data, as long as they relate to an identified or identifiable individual. This is also true for any sort of objective information (think shoe number), regardless of whether it is sensitive or private, as long as it relates to an identified or identifiable individual.
“Related to” must be judged in relation to “content, purpose or effect/consequences”
The condition for any information to be considered personal data is that it relates to a natural person. According to the Court, this means that “by reason of its content, purpose or effect, (it) is linked to a particular person” (§35). The Court thus applies the test developed by the Article 29 Working Party in its 2007 Opinion on the concept of personal data. Ten years ago, the DPAs wrote that “in order to consider that the data ‘relate’ to an individual, a ‘content’ element OR a ‘purpose’ element OR a ‘result’ element should be present” (2007 Opinion, p. 10).
The Court now adopted this test in its case-law, giving an indication of how important the common interpretation given by data protection authorities in official guidance is. However, the Court does not directly refer to the Opinion.
Applying the test to the facts of the case, the Court showed that the content of exam answers “reflects the extent of the candidate’s knowledge and competence in a given field and, in some cases, his intellect, thought processes, and judgment” (§37). Additionally, following AG Kokott’s Opinion, the Court also pointed out that “in the case of a handwritten script, the answers contain, in addition, information as to his handwriting” (§37).
The purpose of the answers is “to evaluate the candidate’s professional abilities and his suitability to practice the profession concerned” (§38) and the consequence of the answers “is liable to have an effect on his or her rights and interests, in that it may determine or influence, for example, the chance of entering the profession aspired to or of obtaining the post sought” (§39).
Comments of reviewers are two times personal data
The test is then applied to the comments of reviewers on the margin of a candidate’s answers. The Court showed that “The content of those comments reflects the opinion or the assessment of the examiner of the individual performance of the candidate in the examination, particularly of his or her knowledge and competences in the field concerned. The purpose of those comments is, moreover, precisely to record the evaluation by the examiner of the candidate’s performance, and those comments are liable to have effects for the candidate” (§43).
It is important to note here that complying with only one of the three criteria (content, purpose, effects) is enough to qualify information as “relating to” an individuals, even if the Court found in this particular case that all of them are met. This is shown by the us of “or” in the enumeration made in §35, as shown above.
The Court also found that “the same information may relate to a number of individuals and may constitute for each of them, provided that those persons are identified or identifiable, personal data” (§45), having regard to the fact that the comments of the examiners are personal data of both the examiners and the “examinee”.
Information can be Personal data regardless of whether one is able to rectify it or not
It was the Irish DPC that argued that qualifying information as “personal data” should be affected by the fact that the consequence of that classification is, in principle, that the candidate has rights of access and rectification (§46). The logic here was that if data cannot be rectified, it cannot be considered personal – just as exam answers cannot be rectified after the exam finished.
The Court (rightfully so) disagreed with this claim, following the opinion of the Advocate General and contradicting its own findings in Case C-141/12 YS (see a more detailed analysis of the interaction between the two judgments below). It argued that “a number of principles and safeguards, provided for by Directive 95/46, are attached to that classification and follow from that classification” (§47), meaning that protecting personal data goes far beyond the ability to access and rectify your data. This finding is followed by a summary of the fundamental mechanisms encompassed by data protection.
Data protection is a web of safeguards, accountability and individual rights
Starting from recital 25 of Directive 95/46 (yet again, how important recitals are! Think here of Recital 4 of the GDPR and the role it can play in future cases – “The processing of personal data should be designed to serve mankind”), the Court stated that:
“…the principles of protection provided for by that directive are reflected, on the one hand, in the obligations imposed on those responsible for processing data, obligations which concern in particular data quality, technical security, notification to the supervisory authority, and the circumstances under which processing can be carried out, and, on the other hand, in the rights conferred on individuals, the data on whom are the subject of processing, to be informed that processing is taking place, to consult the data, to request corrections and even to object to processing in certain circumstances” (§48).
The Court thus looks at data protection as a web of accountability, safeguards (reflected in technical security measures, data quality, conditions for lawful processing data) and rights conferred to the individuals.
In this case, not considering exam answers personal data just because they cannot be “corrected” after the exam would strip this information from the other web of protections, such as being processed on a legitimate ground, being retained only for the necessary period of time and so on. The Court does not phrase this finding this way, but it states that:
“Accordingly, if information relating to a candidate, contained in his or her answers submitted at a professional examination and in the comments made by the examiner with respect to those answers, were not to be classified as ‘personal data’, that would have the effect of entirely excluding that information from the obligation to comply not only with the principles and safeguards that must be observed in the area of personal data protection, and, in particular, the principles relating to the quality of such data and the criteria for making data processing legitimate, established in Articles 6 and 7 of Directive 95/46, but also with the rights of access, rectification and objection of the data subject, provided for in Articles 12 and 14 of that directive, and with the supervision exercised by the supervisory authority under Article 28 of that directive” (§49).
Furthermore, the Court shows that errors in the answers given to an exam do not constitute “inaccuracy” of personal data, because the level of knowledge of a candidate is revealed precisely by the errors in his or her answers, and revealing the level of knowledge is the purpose of this particular data processing. As the Court explains, “[i]t is apparent from Article 6(1)(d) of Directive 95/46 that the assessment of whether personal data is accurate and complete must be made in the light of the purpose for which that data was collected” (§53).
Exam scripts should only be kept in an identifiable form as long as they can be challenged
The Court further explained that both exam answers and reviewers’ comments can nevertheless be subject to “inaccuracy” in a data protection sense, “for example due to the fact that, by mistake, the examination scripts were mixed up in such a way that the answers of another candidate were ascribed to the candidate concerned, or that some of the cover sheets containing the answers of that candidate are lost, so that those answers are incomplete, or that any comments made by an examiner do not accurately record the examiner’s evaluation of the answers of the candidate concerned” (§54).
Also, the Court also admitted the possibility that “a candidate may, under Article 12(b) of Directive 95/46, have the right to ask the data controller to ensure that his examination answers and the examiner’s comments with respect to them are, after a certain period of time, erased, that is to say, destroyed” (§55).
Another finding of the Court that will be useful to schools, universities and other educational institutions is that keeping exam scripts related to an identifiable individual is not necessary anymore after the examination procedure is closed and can no longer be challenged: “Taking into consideration the purpose of the answers submitted by an examination candidate and of the examiner’s comments with respect to those answers, their retention in a form permitting the identification of the candidate is, a priori, no longer necessary as soon as the examination procedure is finally closed and can no longer be challenged, so that those answers and comments have lost any probative value” (§55).
The Court distances itself from the findings in C-141/12 YS, but still wants to keep that jurisprudence alive
One of the biggest questions surrounding the judgment in Nowak was whether the Court will follow AG’s Opinion and change it’s jurisprudence from C-141/12 YS. In that judgment, the Court found that the legal analysis used by the Dutch Ministry of Immigration in a specific case of asylum seekers is not personal data, and the main reason invoked was that “[i]n contrast to the data relating to the applicant for a residence permit which is in the minute and which may constitute the factual basis of the legal analysis contained therein, such an analysis … is not in itself liable to be the subject of a check of its accuracy by that applicant and a rectification under Article 12(b) of Directive 95/46” (§45).
The Court further noted: “In those circumstances, extending the right of access of the applicant for a residence permit to that legal analysis would not in fact serve the directive’s purpose of guaranteeing the protection of the applicant’s right to privacy with regard to the processing of data relating to him, but would serve the purpose of guaranteeing him a right of access to administrative documents, which is not however covered by Directive 95/46.” Finally, the finding was that “[i]t follows from all the foregoing considerations … that the data relating to the applicant for a residence permit contained in the minute and, where relevant, the data in the legal analysis contained in the minute are ‘personal data’ within the meaning of that provision, whereas, by contrast, that analysis cannot in itself be so classified” (§48).
Essentially, in YS the Court linked the ability of accessing and correcting personal data with the classification of information as personal data, finding that if the information cannot be corrected, then it cannot be accessed and it cannot be classified as personal data.
By contrast, following AG Kokott’s analysis, in Nowak the Court essentially states that classifying information as personal data must not be affected by the existence of the rights to access and rectification – in the sense that the possibility to effectively invoke them should not play a role in establishing that certain information is or is not personal data: “the question whether written answers submitted by a candidate at a professional examination and any comments made by an examiner with respect to those answers should be classified as personal data cannot be affected … by the fact that the consequence of that classification is, in principle, that the candidate has rights of access and rectification, pursuant to Article 12(a) and (b) of Directive 95/46” (§46).
However, the Court is certainly not ready to fully change its jurisprudence established in YS, and even refers to its judgment in YS in a couple of paragraphs. In the last paragraphs of Nowak, the Court links the ability to correct or erase data to the existence of the right of accessing that data (but not to classifying information as personal data).
The Court states that: “In so far as the written answers submitted by a candidate at a professional examination and any comments made by an examiner with respect to those answers are therefore liable to be checked for, in particular, their accuracy and the need for their retention… and may be subject to rectification or erasure…, the Court must hold that to give a candidate a right of access to those answers and to those comments… serves the purpose of that directive of guaranteeing the protection of that candidate’s right to privacy with regard to the processing of data relating to him (see, a contrario, judgment of 17 July 2014, YS and Others, C‑141/12 and C‑372/12, EU:C:2014:2081, paragraphs 45 and 46), irrespective of whether that candidate does or does not also have such a right of access under the national legislation applicable to the examination procedure”.
After previously showing an ever deeper understanding of data protection in its Nowak judgment, the Court sticks to some of its findings from YS, even if this meant perpetuating a confusion between the fundamental right to respect for private life and the fundamental right to the protection of personal data: “it must be recalled that the protection of the fundamental right to respect for private life means, inter alia, that any individual may be certain that the personal data relating to him is correct and that it is processed in a lawful manner” (§57 in Nowak and §44 in YS). Lawful processing of personal data and the right to keep personal data accurate are, in fact, enshrined in Article 8 of the EU Charter – the right to the protection of personal data, and not in Article 7 – the right to respect for private life.
Obiter dictum 1: the curious insertion of “exam questions” in the equation
The Court also does something curious in these last paragraphs. It simply states, after the paragraphs sending to the YS judgment, that “the rights of access and rectification, under Article 12(a) and (b) of Directive 95/46, do not extend to the examination questions, which do not as such constitute the candidate’s personal data” (§58). The national court did not ask about this specific point. AG Kokott also does not address this issue at all in her Opinion. This might have been raised during the hearing, but no context is provided to it. The Court simply states that “Last, it must be said…” and follows it with the finding regarding test questions.
While it is easy to see that questions of a specific test, by themselves, are not personal data, as they do not relate with regard to their content, purpose or effect to a specific individual, the situation is not as clear when the questions are part of the “solved” exam sheet of a specific candidate. The question is: “Are the answers of the test inextricably linked to the questions?” Imagine a multiple choice test, where the candidate only gains access to his/her answers, without obtaining access to the questions of that test. Accessing the answers would be unintelligible. For instance, EPSO candidates have been trying for years to access their own exam sheets held by the EPSO agency of the European Union, with no success. This is exactly because EPSO only provides access to the series of letters chosen as answers from the multiple choice test. Challenges of this practice have all failed, including those brought to the attention of the former Civil Service Tribunal of the CJEU (see this case, for example). This particular finding in Nowak closes the barely opened door for EPSO candidates to finally have access to their whole test sheet.
Obiter dictum 2: reminding Member States they can restrict the right of access
With an apparent reason and referring to the GDPR, the CJEU recalls, as another obiter dictum, under the same “it must be said” (§58 and §59), that both Directive 95/46 and the GDPR “provide for certain restrictions of those rights” (§59) – access, erasure etc.
It also specifically refers to grounds that can be invoked by Member States when limiting the right to access under the GDPR: when such a restriction constitutes a necessary measure to safeguard the rights and freedoms of others (§60,§61), or if it is done for other objectives of general public interest of the Union or of a Member State (§61).
These findings are not followed by any other considerations, as the Court concludes with a finding that had already been reached around §50: “the answer to the questions referred is that Article 2(a) of Directive 95/46 must be interpreted as meaning that, in circumstances such as those of the main proceedings, the written answers submitted by a candidate at a professional examination and any comments made by an examiner with respect to those answers constitute personal data, within the meaning of that provision” (§62).
If you want to have a look at a summary of AG Kokott’s excellent Conclusions in this case and then compare them to the judgment of the Court, click here. The Court did follow the Conclusions to a great extent.