On May 4, 2022, the General Court of the EU handed down a decision that helps clarify the standard of proof required to demonstrate that information that does not identify someone by name constitutes “personal data” under EU data protection law.  The court also clarifies that the burden of proof falls on the entity alleging that the information is personal data.

The case concerns an online press release published by the European Anti-Fraud Office’s (“OLAF”) announcing that it had determined that a Greek scientist had committed fraud using EU funds intended to finance a research project.  Among other things, the scientist alleged that the press release contained “personal data” about her and, therefore, OLAF breached data protection law because it did not have a legal basis to disseminate her “personal data”.  She also alleged that OLAF’s press release had enabled two journalists to identify her and write each an article mentioning her by name.

The court disagreed with the position taken by the scientist, holding that the she was not able to demonstrate that the published information enabled her identification and, therefore, it had not demonstrated that the information was “personal data”.  It also decided that OLAF was not responsible for the news articles that identified the scientist by name.

Below we summarize the court’s decision with regards to (1) whether the scientist was able to satisfy her burden of proof that the information in the press release constitutes personal data and (2) whether OLAF is responsible for articles identifying the scientist by name.

(1) Was the scientist able to demonstrate that the information in the press release constitutes personal data?

The court decided that the scientist did not prove to the “requisite legal standard” that a third party could identify the scientist solely based on the information OLAF disclosed in the press release, or otherwise by using “means reasonably likely to be used”.  More specifically, the court decided that a person reading the press release would need to use means that are “not reasonably likely to be used” in order to identify the scientist.  Therefore, the court found that the information in the press release did not constitute “personal data”.

Because OLAF is an EU institution, the court relied on the definition of “personal data” under EU Regulation (EU) 2018/1725 (“Regulation”), which only applies to EU institutions, bodies, offices and agencies.  The definition of “personal data” under this Regulation is the same as under the EU GDPR (“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”).  Just like the EU GDPR, the Regulation provides that “to determine whether a natural person is identifiable, account should be taken of all the means reasonably likely to be used”.

The court assessed whether the information about the scientists disclosed in the press release made it possible to identify her in light of the Regulation’s concept of “personal data”.  The court emphasized that the scientist had the burden of proving that the information disclosed in the press release was “personal data”.

The press release included information about the scientist, namely, her gender, the fact that she is young, her occupation, and nationality.  It also included other elements, namely a reference to the scientist’s father and the place where he works, as well as the approximate amount of the grant supplied to the scientist, the granting body, the nature of the entity hosting the project, and its geographical location.  The press release did not include the scientist’s name, the subject matter of the research, or the project’s name. 

The scientist alleged that someone reading the press release could use the above-mentioned information to identify her using “means reasonable likely to be used” and it even explained how this could be done.  However, the court decided that the scientist had not sufficiently proven this allegation.

(2) Did the information in the press release allow two journalists to write an article identifying the scientist by name?

The court held that it did not.  The court found that the journalists would have needed “to use external and complementary identification elements to said press release” in order to identify the scientist by name.  The court did not expressly indicate that the means used by the journalists to identify the scientist were not “means reasonable likely to be used”.  However, in light of the answer to the first question above, the Court presumably concluded that they had not used “means reasonable likely to be used”. 

According to the court, OLAF could not be held responsible for the journalists’ articles because, under EU law, OLAF is only liable for acts or conduct attributable to it.  Further, the court held that the information the journalists used to identify the scientist, which fell outside the press release, cannot be attributable to OLAF.  For the court to hold OLAF responsible, the scientist would have had to demonstrate that her identification was as a result of the press release and did not result from external or additional information.  According to the court, the scientist was not able to demonstrate this.

The scientist had also alleged that other news articles that did not identify her my name had emerged as a result of the press release.  However, the court held that the scientist failed to demonstrate a link between OLAF’s press release and these articles.

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Although the General Court’s decision of the standard of proof required does not bind the Court of Justice, we think that it is likely that the Court of Justice will follow the General Court’s reasoning should it be asked to decide on whether information not identifying an individual by name constitutes “personal data” under the EU GDPR.  That being said, the factual elements of a case will be essential to determine whether the required standard of proof is met.

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Photo of Dan Cooper Dan Cooper

Daniel Cooper is co-chair of Covington’s Data Privacy and Cyber Security Practice, and advises clients on information technology regulatory and policy issues, particularly data protection, consumer protection, AI, and data security matters. He has over 20 years of experience in the field, representing…

Daniel Cooper is co-chair of Covington’s Data Privacy and Cyber Security Practice, and advises clients on information technology regulatory and policy issues, particularly data protection, consumer protection, AI, and data security matters. He has over 20 years of experience in the field, representing clients in regulatory proceedings before privacy authorities in Europe and counseling them on their global compliance and government affairs strategies. Dan regularly lectures on the topic, and was instrumental in drafting the privacy standards applied in professional sport.

According to Chambers UK, his “level of expertise is second to none, but it’s also equally paired with a keen understanding of our business and direction.” It was noted that “he is very good at calibrating and helping to gauge risk.”

Dan is qualified to practice law in the United States, the United Kingdom, Ireland and Belgium. He has also been appointed to the advisory and expert boards of privacy NGOs and agencies, such as Privacy International and the European security agency, ENISA.

Photo of Kristof Van Quathem Kristof Van Quathem

Kristof Van Quathem advises clients on information technology matters and policy, with a focus on data protection, cybercrime and various EU data-related initiatives, such as the Data Act, the AI Act and EHDS.

Kristof has been specializing in this area for over twenty…

Kristof Van Quathem advises clients on information technology matters and policy, with a focus on data protection, cybercrime and various EU data-related initiatives, such as the Data Act, the AI Act and EHDS.

Kristof has been specializing in this area for over twenty years and developed particular experience in the life science and information technology sectors. He counsels clients on government affairs strategies concerning EU lawmaking and their compliance with applicable regulatory frameworks, and has represented clients in non-contentious and contentious matters before data protection authorities, national courts and the Court of the Justice of the EU.

Kristof is admitted to practice in Belgium.

Photo of Anna Oberschelp de Meneses Anna Oberschelp de Meneses

Anna Sophia Oberschelp de Meneses is an associate in the Data Privacy and Cybersecurity Practice Group.  Anna is a qualified Portuguese lawyer, but is both a native Portuguese and German speaker.  Anna advises companies on European data protection law and helps clients coordinate…

Anna Sophia Oberschelp de Meneses is an associate in the Data Privacy and Cybersecurity Practice Group.  Anna is a qualified Portuguese lawyer, but is both a native Portuguese and German speaker.  Anna advises companies on European data protection law and helps clients coordinate international data protection law projects.  She has obtained a certificate for “corporate data protection officer” by the German Association for Data Protection and Data Security (“Gesellschaft für Datenschutz und Datensicherheit e.V.”). She is also Certified Information Privacy Professional Europe (CIPPE/EU) by the International Association of Privacy Professionals (IAPP).  Anna also advises companies in the field of EU consumer law and has been closely tracking the developments in this area.  Her extensive language skills allow her to monitor developments and help clients tackle EU Data Privacy, Cybersecurity and Consumer Law issues in various EU and ROW jurisdictions.