Article 5 GDPR. Principles relating to processing of personal data

Article 5

Principles relating to processing of personal data

1. Personal data shall be:

(a) processed lawfully, fairly and in a transparent manner in relation to the data subject (‘lawfulness, fairness and transparency’);

(b) collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes shall, in accordance with Article 89(1), not be considered to be incompatible with the initial purposes (‘purpose limitation’);

(c) adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed (‘data minimisation’);

(d) accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay (‘accuracy’);

(e) kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed; personal data may be stored for longer periods insofar as the personal data will be processed solely for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article 89(1) subject to implementation of the appropriate technical and organisational measures required by this Regulation in order to safeguard the rights and freedoms of the data subject (‘storage limitation’);

(f) processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures (‘integrity and confidentiality’).

2. The controller shall be responsible for, and be able to demonstrate compliance with, paragraph 1 (‘accountability’).

Guidelines 4/2019 on Article 25 Data Protection by Design and by Default Version 2.0.

8. Technical and organizational measures and necessary safeguards can be understood in a broad sense as any method or means that a controller may employ in the processing. Being appropriate means that the measures and necessary safeguards should be suited to achieve the intended purpose, i.e. they must implement the data protection principles effectively.[3] The requirement to appropriateness is thus closely related to the requirement of effectiveness.

_{[3] „Effectiveness“ is addressed below in subchapter 2.1.2}

9. A technical or organisational measure and safeguard can be anything from the use of advanced technical solutions to the basic training of personnel. Examples that may be suitable, depending on the context and risks associated with the processing in question, includes pseudonymization of personal data [4]; storing personal data available in a structured, commonly machine readable format; enabling data subjects to intervene in the processing; providing information about the storage of personal data; having malware detection systems; training employees about basic „cyber hygiene“; establishing privacy and information security management systems, obligating processors contractually to implement specific data minimisation practices, etc.

_{[4] Defined in Article 4(5) GDPR}

Guidelines 4/2019 on Article 25 Data Protection by Design and by Default Version 2.0.

Addressing effectiveness

13. Effectiveness is at the heart of the concept of data protection by design. The requirement to implement the principles in an effective manner means that controllers must implement the necessary measures and safeguards to protect these principles, in order to secure the rights of data subjects. Each implemented measure should produce the intended results for the processing foreseen by the controller. This observation has two consequences.

14. First, it means that Article 25 does not require the implementation of any specific technical and organizational measures, rather that the chosen measures and safeguards should be specific to the implementation of data protection principles into the particular processing in question. In doing so, the measures and safeguards should be designed to be robust and the controller should be able to implement further measures in order to scale to any increase in risk.[6] Whether or not measures are effective will therefore depend on the context of the processing in question and an assessment of certain elements that should be taken into account when determining the means of processing. The aforementioned elements will be addressed below in subchapter 2.1.3.

_{[6] „Fundamental principles applicable to the controllers (i.e. legitimacy, data minimisation, purpose limitation, transparency, data integrity, data accuracy) should remain the same, whatever the processing and the risks for the data subjects. However, due regard to the nature and scope of such processing have always been an integral part of the application of those principles, so that they are inherently scalable.“ Article 29 Working Party. „Statement on the role of a risk-based approach in data protection legal frameworks“. WP 218, 30 May 2014, p. 3. ec.europa.eu/justice/article-29/documentation/opinion-recommendation/files/2014/wp218_en.pdf}

15. Second, controllers should be able to demonstrate that the principles have been maintained.

16. The implemented measures and safeguards should achieve the desired effect in terms of data protection, and the controller should have documentation of the implemented technical and organizational measures.[7] To do so, the controller may determine appropriate key performance indicators (KPI) to demonstrate the effectiveness. A KPI is a measurable value chosen by the controller that demonstrates how effectively the controller achieves their data protection objective. KPIs may be quantitative, such as the percentage of false positives or false negatives, reduction of complaints, reduction of response time when data subjects exercise their rights; or qualitative, such as evaluations of performance, use of grading scales, or expert assessments. Alternatively to KPIs, controllers may be able to demonstrate the effective implementation of the principles by providing the rationale behind their assessment of the effectiveness of the chosen measures and safeguards.

_{[7] See Recitals 74 and 78.}

Guidelines 4/2019 on Article 25 Data Protection by Design and by Default Version 2.0.

2.1.3.1 „state of the art“

18. The concept of „state of the art“ is present in various EU acquis, e.g. environmental protection and product safety. In the GDPR, reference to the „state of the art“ [8] is made not only in Article 32, for security measures,[9][10] but also in Article 25, thus extending this benchmark to all technical and organisational measures embedded in the processing.

_{[8] See German Federal Constitutional Court’s „Kalkar“ decision in 1978: https://germanlawarchive.iuscomp.org/?p=67 may provide the foundation for a methodology for an objective definition of the concept. On that basis, the „state of the art“ technology level would be identified between the „existing scientific knowledge and research“ technology level and the more established „generally accepted rules of technology“. The „state of the art“ can hence be identified as the technology level of a service or technology or product that exists in the market and is most effective in achieving the objectives identified.}

_{[9] https://www.enisa.europa.eu/news/enisa-news/what-is-state-of-the-art-in-it-security}

_{[10] www.teletrust.de/en/publikationen/broschueren/state-of-the-art-in-it-security/}

19. In the context of Article 25, the reference to „state of the art“ imposes an obligation on controllers, when determining the appropriate technical and organisational measures, to take account of the current progress in technology that is available in the market. The requirement is for controllers to have knowledge of, and stay up to date on technological advances; how technology can present data protection risks or opportunities to the processing operation; and how to implement and update the measures and safeguards that secure effective implementation of the principles and rights of data subjects taking into account the evolving technological landscape.

20. The „state of the art“ is a dynamic concept that cannot be statically defined at a fixed point in time, but should be assessed continuously in the context of technological progress. In the face of technological advancements, a controller could find that a measure that once provided an adequate level of protection no longer does. Neglecting to keep up to date with technological changes could therefore result in a lack of compliance with Article 25.

21. The „state of the art“ criterion does not only apply to technological measures, but also to organisational ones. Lack of appropriate organisational measures can lower or even completely undermine the effectiveness of a chosen technology. Examples of organisational measures can be adoption of internal policies; up-to date training on technology, security and data protection; and IT security governance and management policies.

22. Existing and recognized frameworks, standards, certifications, codes of conduct, etc. in different fields may play a role in indicating the current „state of the art“ within the given field of use. Where such standards exist and provide a high level of protection for the data subject in compliance with – or go beyond – legal requirements, controllers should take them into account in the design and implementation of data protection measures.

2.1.3.2 „cost of implementation“

23. The controller may take the cost of implementation into account when choosing and applying appropriate technical and organisational measures and necessary safeguards that effectively implement the principles in order to protect the rights of data subjects. The cost refers to resources in general, including time and human resources.

2.1.3.3 „nature, scope, context and purpose of processing“

28. In short, the concept of nature can be understood as the inherent[11] characteristics of the processing. The scope refers to the size and range of the processing. The context relates to the circumstances of the processing, which may influence the expectations of the data subject, while the purpose pertains to the aims of the processing.

_{[11] Examples are special categories personal data, automatic decision-making, skewed power relations, unpredictable processing, difficulties for the data subject to exercise the rights, etc.}

2.1.3.4 „risks of varying likelihood and severity for rights and freedoms of natural persons posed by the processing“

32. The risk based approach does not exclude the use of baselines, best practices and standards. These might provide a useful toolbox for controllers to tackle similar risks in similar situations (nature, scope, context and purpose of processing). Nevertheless, the obligation in Article 25 (as well as Articles 24, 32 and 35(7)(c)) to take into account „risks of varying likelihood and severity for rights and freedoms of natural persons posed by the processing“ remains. Therefore, controllers, although supported by such tools, must always carry out a data protection risk assessment on a case by case basis for the processing activity at hand and verify the effectiveness of the appropriate measures and safeguards proposed. A DPIA, or an update to an existing DPIA, may then additionally be required.

2.1.4.1 At the time of the determination of the means for processing

34. The „means for processing“ range from the general to the detailed design elements of the processing, including the architecture, procedures, protocols, layout and appearance.

35. The „time of determination of the means for processing“ refers to the period of time when the controller is deciding how the processing will be conducted and the manner in which the processing will occur and the mechanisms which will be used to conduct such processing. It’s in the process of making such decisions that the controller must assess the appropriate measures and safeguards to effectively implement the principles and rights of data subjects into the processing, and take into account elements such as the state of the art, cost of implementation, nature, scope, context and purpose, and risks. This includes the time of procuring and implementing data processing software, hardware, and services.

Guidelines 4/2019 on Article 25 Data Protection by Design and by Default Version 2.0.

By default, only personal data which are necessary for each specific purpose of the processing are processed

2.2.1

40. A „default“, as commonly defined in computer science, refers to the pre-existing or preselected value of a configurable setting that is assigned to a software application, computer program or device. Such settings are also called „presets“ or „factory presets“, especially for electronic devices.

41. Hence, the term „by default“ when processing personal data, refers to making choices regarding configuration values or processing options that are set or prescribed in a processing system, such as a software application, service or device, or a manual processing procedure that affect the amount of personal data collected, the extent of their processing, the period of their storage and their accessibility.

46. The EDPS guidelines to assess necessity and proportionality of measures that limit the right to data protection can be useful also to decide which data is necessary to process in order to achieve a specific purpose.[10][11]

_{[10] EDPS. “Guidelines on assessing the necessity and proportionality of measures that limit the right to data protection”. 25 February 2019.}

_{[11] For more info on necessity, see Article 29 Working Party. “Opinion 06/2014 on the notion of legitimate interests of the data controller under Article 7 of Directive 95/46/EC”. WP 217, 9 April 2014.}

2.2.2.2 „the extent of their processing“

51. Processing [17] operations performed on personal data shall be limited to what is necessary. As noted above, many processing operations may contribute to a processing purpose, but just because personal data is needed to fulfil a purpose does not mean that all types of, and frequencies of, processing operations may be carried out on the data. Controllers should also be careful not to extend the boundaries of „compatible purposes“, and have in mind what processing will be within the reasonable expectations of data subjects.

_{[17] According to Art. 4(2) GDPR, this includes 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.}

Article 42 GDPR. Certification

1. The Member States, the supervisory authorities, the Board and the Commission shall encourage, in particular at Union level, the establishment of data protection certification mechanisms and of data protection seals and marks, for the purpose of demonstrating compliance with this Regulation of processing operations by controllers and processors. The specific needs of micro, small and medium-sized enterprises shall be taken into account.

2. In addition to adherence by controllers or processors subject to this Regulation, data protection certification mechanisms, seals or marks approved pursuant to paragraph 5 of this Article may be established for the purpose of demonstrating the existence of appropriate safeguards provided by controllers or processors that are not subject to this Regulation pursuant to Article 3 within the framework of personal data transfers to third countries or international organisations under the terms referred to in point (f) of Article 46(2). Such controllers or processors shall make binding and enforceable commitments, via contractual or other legally binding instruments, to apply those appropriate safeguards, including with regard to the rights of data subjects.

3. The certification shall be voluntary and available via a process that is transparent.

4. A certification pursuant to this Article does not reduce the responsibility of the controller or the processor for compliance with this Regulation and is without prejudice to the tasks and powers of the supervisory authorities which are competent pursuant to Article 55 or 56.

5. A certification pursuant to this Article shall be issued by the certification bodies referred to in Article 43 or by the competent supervisory authority, on the basis of criteria approved by that competent supervisory authority pursuant to Article 58(3) or by the Board pursuant to Article 63. Where the criteria are approved by the Board, this may result in a common certification, the European Data Protection Seal.

6. The controller or processor which submits its processing to the certification mechanism shall provide the certification body referred to in Article 43, or where applicable, the competent supervisory authority, with all information and access to its processing activities which are necessary to conduct the certification procedure.

7. Certification shall be issued to a controller or processor for a maximum period of three years and may be renewed, under the same conditions, provided that the relevant criteria continue to be met. Certification shall be withdrawn, as applicable, by the certification bodies referred to in Article 43 or by the competent supervisory authority where the criteria for the certification are not or are no longer met.

8. The Board shall collate all certification mechanisms and data protection seals and marks in a register and shall make them publicly available by any appropriate means.