Article 25 GDPR: Difference between revisions
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==Commentary== | ==Commentary== | ||
Article 25 GDPR establishes the idea of data protection "by ''design'' and by ''default''”.<ref>The Data Protection Directive did not contain a similar provision. Although Article 17 DPD Recital 46 had a similar thrust, the focus in those provisions revolved mostly around security. See, ''Bygrave'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 25 GDPR, p. 573 (Oxford University Press 2020). However, these concepts were not new: privacy by design -and default was originally conceptualized in the 1990s by the Canadian Information and Privacy Commissioner of Ontario. They held that, in order to be effective, data protection must be implemented ''ex ante''. Hence, the controller must define the privacy requirements that need to be taken into account while engineering, and determine the default settings of the final product. See, ''Nolte, Werkmeister'', in Gola, Datenschutz-Grundverordnung, Article 25 GDPR, margin number 1 (C.H. Beck 2022, 3rd Edition).</ref> Accordingly, controllers must put in place appropriate technical and organisational measures that are designed to implement data protection principles. This means that when programming, designing | Article 25 GDPR establishes the idea of data protection "by ''design'' and by ''default''”.<ref>The Data Protection Directive did not contain a similar provision. Although Article 17 DPD Recital 46 had a similar thrust, the focus in those provisions revolved mostly around security. See, ''Bygrave'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 25 GDPR, p. 573 (Oxford University Press 2020). However, these concepts were not new: privacy by design -and default was originally conceptualized in the 1990s by the Canadian Information and Privacy Commissioner of Ontario. They held that, in order to be effective, data protection must be implemented ''ex ante''. Hence, the controller must define the privacy requirements that need to be taken into account while engineering, and determine the default settings of the final product. See, ''Nolte, Werkmeister'', in Gola, Datenschutz-Grundverordnung, Article 25 GDPR, margin number 1 (C.H. Beck 2022, 3rd Edition).</ref> Accordingly, controllers must put in place appropriate technical and organisational measures that are designed to implement data protection principles. This means that when programming, designing and conceptualizing systems and programs, as well as when acquiring systems and services from third parties, the relevant data protection aspects should be taken into account and integrated into the technology.<ref>''Bygrave'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 25 GDPR, p. 576 (Oxford University Press 2020).</ref> The first paragraph describes the principles of data protection by ''design'' in more detail. The second paragraph expands on this by describing the principles of data protection by ''default''. The third paragraph explains that an approved certification mechanism, pursuant to Article 42, may be used as an element to demonstrate compliance.<ref>''Hartung'', in Kühling, Buchner, DS-GVO BDSG, Article 25, margin number 30 (C.H. Beck 2024, 4th Edition).</ref> | ||
The obligations under Article 25 are directed specifically at the controller ([[Article 4 GDPR|Article 4(7) GDPR]]) which remains accountable for fulfilling all legal obligations related to data processing. Processors are indirectly affected since, under [[Article 28 GDPR|Article 28(1) GDPR]], a controller shall only use processors providing the same standards as foreseen under Article 25 GDPR.<ref>Article 28(1) partially repeats the wording of Article 25(1): "''processors providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that processing will meet the requirements of this Regulation and ensure the protection of the rights of the data subject''".</ref> However, ultimately the controller is responsible for the compliance of the processing carried out by their processors and sub-processors.<ref>EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 1 (available [https://www.edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-42019-article-25-data-protection-design-and_en here]).</ref> | The obligations under Article 25 are directed specifically at the controller ([[Article 4 GDPR|Article 4(7) GDPR]]) which remains accountable for fulfilling all legal obligations related to data processing. Processors are indirectly affected since, under [[Article 28 GDPR|Article 28(1) GDPR]], a controller shall only use processors providing the same standards as foreseen under Article 25 GDPR.<ref>Article 28(1) partially repeats the wording of Article 25(1): "''processors providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that processing will meet the requirements of this Regulation and ensure the protection of the rights of the data subject''".</ref> However, ultimately the controller is responsible for the compliance of the processing carried out by their processors and sub-processors.<ref>EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 1 (available [https://www.edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-42019-article-25-data-protection-design-and_en here]).</ref> | ||
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===== State of the art ===== | ===== State of the art ===== | ||
In general, this means, that the controller has to be aware of and take into account the latest developments in its field and has to stay up-to-date with technology. The idea is that a controller shall never go below what is commonly considered the appropriate technological standard at a given time. In detail, the interpretation of this criterion can be challenging, requiring appropriate technical expertise and input from | In general, this means, that the controller has to be aware of and take into account the latest developments in its field and has to stay up-to-date with technology. The idea is that a controller shall never go below what is commonly considered the appropriate technological standard at a given time. In detail, the interpretation of this criterion can be challenging, requiring appropriate technical expertise and input from experts. Guidelines by supervisory authorities can also be helpful to interpret the current state of the art.<ref>''Hartung'', in Kühling, Buchner, DS-GVO BDSG, Article 25 GDPR, margin numbers 21 (C.H. Beck 2024, 4th Edition). The Author also points out that the concept also defines limit to the controller's responsibility. Authorities cannot require the controller to go beyond the "state of the art".</ref> But since the ''state of the art'' is a dynamic concept which has to be assessed continuously and in the context of the technological progress, even existing standards or guidelines can only be indicative for the assessment whether respective measures of the controller still suffice.<ref>EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 20 (available [https://www.edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-42019-article-25-data-protection-design-and_en here]).</ref> | ||
The "state of the art" criterion does not exclusively apply to technical measures. Also the organisational measures like data protection and IT-security trainings or policies of the controller have to reflect any developments in the state of the art.<ref>EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 21 (available [https://www.edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-42019-article-25-data-protection-design-and_en here]).</ref> | The "state of the art" criterion does not exclusively apply to technical measures. Also the organisational measures like data protection and IT-security trainings or policies of the controller have to reflect any developments in the state of the art.<ref>EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 21 (available [https://www.edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-42019-article-25-data-protection-design-and_en here]).</ref> | ||
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=====Risks of varying likelihood and severity for rights and freedoms of natural persons posed by the processing ===== | =====Risks of varying likelihood and severity for rights and freedoms of natural persons posed by the processing ===== | ||
The GDPR imposes the duty to perform a risk assessment in a number of its provisions like in Articles [[Article 24 GDPR|24]], 25, [[Article 32 GDPR|32]] and [[Article 35 GDPR|35]]. The risk assessment should always be performed with regard to a given processing activity and is usually performed in connection with | The GDPR imposes the duty to perform a risk assessment in a number of its provisions like in Articles [[Article 24 GDPR|24]], 25, [[Article 32 GDPR|32]] and [[Article 35 GDPR|35]]. The risk assessment should always be performed with regard to a given processing activity and is usually performed in connection with all the GDPR provisions demanding a risk assessment. Since the state of the art as well as the specific conditions of a processing activity regularly change, the risk assessment should be performed in regular intervals and when it comes to changes in the processing activity. For detailed remarks see therefore commentary on [[Article 24 GDPR]]. <blockquote><u>Example</u>: The provider of a newspaper offers high quality news articles against payment. The provider plans to give visitors of its website the alternative option to "pay" for the article by consenting to the processing of their personal data for behavioural advertising. According to the risk assessment foreseen in Article 25(1) GDPR the controller takes into account the particular risks associated with a lack of freely given consent, which constitutes a violation of the lawfulness principle and ends up implementing an additional free version without behavioural advertising<ref>EDPB, 'Opinion 08/2024 on Valid Consent in the Context of Consent or Pay Models Implemented by Large Online Platforms', 17 April 2024, margin number 42 et seqq (available [https://www.edpb.europa.eu/system/files/2024-04/edpb_opinion_202408_consentorpay_en.pdf here]). </ref> in order to provide an adequate alternative to the consent option.<ref>EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 30 (available [https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-42019-article-25-data-protection-design-and_en here]).</ref></blockquote> | ||
==== At the time of the determination of the means [...] and at the time of processing ==== | ==== At the time of the determination of the means [...] and at the time of processing ==== | ||
Controllers must assess the implementation of appropriate measures "''at the time of the determination of the means for processing''" and "''at the time of the processing itself''". Therefore, the controller | Controllers must assess the implementation of appropriate measures "''at the time of the determination of the means for processing''" and "''at the time of the processing itself''". Therefore, the controller must already consider this obligation in the design stage of the processing activity - i.e. when it considers how the processing will be conducted and which mechanisms and tools it will use for the processing.<ref>EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 34 (available [https://www.edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-42019-article-25-data-protection-design-and_en here]).</ref> Hence, the privacy by design principle should be considered as early as possible in order to select appropriate processing mechanisms (e.g. software, hardware, processors) right away and to avoid later changes in the basic components of the processing activity.<ref>EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), marginal number 36 (available [https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-42019-article-25-data-protection-design-and_en here]).</ref> <blockquote><u>Example</u>: A bank wants to implement a whistleblower tool for its employees. According to the privacy by design principle set out in Article 25(1) GDPR, the bank, as a controller, has to consider the requirements of the GDPR already during the design stage of the processing activity. Therefore, it has to consider how it can ensure compliance with data protection principles and protect the rights of data subjects (e.g. by choosing a GDPR compliant software by a third party and defining the strictly necessary information collected by whistleblower). </blockquote>Obviously the obligations also apply throughout the live circle of the processing activity. Therefore, the controller must also consider the privacy by design principle when it considers any later changes in the processing activity. | ||
This can lead to problems for processing activities that were already in place before the GDPR entered into force and that cannot easily be changed. However, Article 25 GDPR also applies to such | This can lead to problems for processing activities that were already in place before the GDPR entered into force and that cannot easily be changed. However, Article 25 GDPR also applies to such preexisting systems. Controllers must re-asses their means of processing if the systems they use are outdated and fail to ensure compliance with the GDPR.<ref>EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), marginal number 38 (available [https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-42019-article-25-data-protection-design-and_en here]).</ref> Because the state of the art continuously changes, updating systems will be a continuous and necessary practical component of adhering to the privacy by design principle during ongoing processing activities.<ref>''Nolte, Werkmeister'', in Gola, Heckmann, Datenschutz-Grundverordnung, Article 25 GDPR, margin number 14 (C.H. Beck 2022, 3rd Edition).</ref> | ||
==== Shall implement appropriate technical and organizational measures ==== | ==== Shall implement appropriate technical and organizational measures ==== | ||
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The "technical and organisational measures" mentioned in this provision are in principle the same measures mentioned in other provisions of the GDPR like Articles [[Article 24 GDPR|24]] and [[Article 32 GDPR|32]]. Only the concrete aim of the measures is specified somewhat differently in the various provisions. | The "technical and organisational measures" mentioned in this provision are in principle the same measures mentioned in other provisions of the GDPR like Articles [[Article 24 GDPR|24]] and [[Article 32 GDPR|32]]. Only the concrete aim of the measures is specified somewhat differently in the various provisions. | ||
Article 25 GDPR specifically mentions pseudonymisation ([[Article 4 GDPR|Article 4(5) GDPR]]) as a technical and organisational measure | Article 25 GDPR specifically mentions pseudonymisation ([[Article 4 GDPR|Article 4(5) GDPR]]) as a technical and organisational measure. It notes that such measures should be designed (i) to implement data-protection principles, such as (but not limited to) data minimisation ([[Article 5 GDPR|Article 5(1)(c) GDPR]]), in an effective manner and (ii) to integrate the integrate the necessary safeguards into the processing in order to meet the requirements of the GDPR and protect the rights of data subjects. | ||
For detailed remarks on "technical and organisational measures" see the commentary on [[Article 24 GDPR]]. | For detailed remarks on "technical and organisational measures", see the commentary on [[Article 24 GDPR]]. | ||
===== Appropriate measures ===== | ===== Appropriate measures ===== | ||
"Appropriate" is a technical or organisational measure that effectively addresses the issues posed by the specific processing and circumstances. In general, the "appropriateness" of measures chosen by the controller is a point upon which several GDPR provisions touch, most notably - alongside | "Appropriate" is a technical or organisational measure that effectively addresses the issues posed by the specific processing and circumstances. In general, the "appropriateness" of measures chosen by the controller is a point upon which several GDPR provisions touch, most notably - alongside Article 25 - Articles [[Article 24 GDPR|24]] and [[Article 32 GDPR|32]]. The EDPS Guidelines on assessing the proportionality of measures that limit the fundamental rights to privacy and to the protection of personal data<ref>EDPS, ‘Guidelines on assessing the proportionality of measures that limit the fundamental rights to privacy and to the protection of personal data’, 19 December 2019 (available [https://edps.europa.eu/sites/default/files/publication/19-12-19_edps_proportionality_guidelines2_en.pdf here]). | ||
</ref> can be used as a starting point to gain some insight. | </ref> can be used as a starting point to gain some insight. | ||
Article 25(1) GDPR mentions | Article 25(1) GDPR mentions pseudonymisation as an example of an appropriate technical and organisational measure. The [https://www.edpb.europa.eu/sites/default/files/files/file1/edpb_guidelines_201904_dataprotection_by_design_and_by_default_v2.0_en.pdf EDPB Guidelines] list other potential suitable measures - always depending on the context and the associated risks: | ||
* storing personal data available in a structured, commonly machine-readable format; | * storing personal data available in a structured, commonly machine-readable format; | ||
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* training employees about basic "cyber hygiene"; | * training employees about basic "cyber hygiene"; | ||
* establishing privacy and information security management systems; and | * establishing privacy and information security management systems; and | ||
* obligating processors contractually to implement specific data minimisation practices.<ref>EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 9 (available [https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-42019-article-25-data-protection-design-and_en here]).</ref> | * obligating processors contractually to implement specific data minimisation practices.<ref>EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 9 (available [https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-42019-article-25-data-protection-design-and_en here]).</ref> | ||
Specifically important for the timely consideration of data protection principles is in the design stage of a processing activity is the implementation of internal policies obliging the controller's employees to take the requirements of the GDPR into account when they start to determine the means for the processing.<ref>Compare Recital 78 GDPR.</ref> <blockquote><u>Example</u>: A financial institution requires its product development team to complete a "privacy by design information sheet" during the design phase of new products. The team has to collect specific information regarding the processing in the document and already clarify how the data protection principles and data subject's rights are secured. </blockquote>Furthermore, in line with the accountability principle stated in [[Article 5 GDPR|Article 5(2) GDPR]], the controller should adopt additional measures to demonstrate the effectiveness of their choices.<ref>EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 15 (available [https://www.edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-42019-article-25-data-protection-design-and_en here]).</ref> | Specifically important for the timely consideration of data protection principles is in the design stage of a processing activity is the implementation of internal policies obliging the controller's employees to take the requirements of the GDPR into account when they start to determine the means for the processing.<ref>Compare Recital 78 GDPR.</ref> <blockquote><u>Example</u>: A financial institution requires its product development team to complete a "privacy by design information sheet" during the design phase of new products. The team has to collect specific information regarding the processing in the document and already clarify how the data protection principles and data subject's rights are secured. </blockquote>Furthermore, in line with the accountability principle stated in [[Article 5 GDPR|Article 5(2) GDPR]], the controller should adopt additional measures to demonstrate the effectiveness of their choices.<ref>EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 15 (available [https://www.edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-42019-article-25-data-protection-design-and_en here]).</ref> | ||
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While this provision does not require the implementation of any specific technical and organisational measure the controller is obliged to find measures that effectively protect and ensure the compliance with the data protection principles. In order to decide if a specific measure is effective (and therefore appropriate) in implementing data protection principles the controller has to consider the context of the specific processing.<ref>EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 14 (available [https://www.edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-42019-article-25-data-protection-design-and_en here]).</ref> | While this provision does not require the implementation of any specific technical and organisational measure the controller is obliged to find measures that effectively protect and ensure the compliance with the data protection principles. In order to decide if a specific measure is effective (and therefore appropriate) in implementing data protection principles the controller has to consider the context of the specific processing.<ref>EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 14 (available [https://www.edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-42019-article-25-data-protection-design-and_en here]).</ref> | ||
In order to fulfil this obligation effectively the controller has to implement measures to systematically ensure that all current and future processing activities include appropriate technical and organisational measures.<ref name=":1">''Hötzendorfer, et al.,'' in Knyrim, DatKomm, Article 25 GDPR, margin numbers 22 (Manz 2022).</ref><blockquote><u>Example</u>: In order to fulfil its obligation under Article 25(1) GDPR a controller implements a privacy by design process for every new processing activity and audits existing | In order to fulfil this obligation effectively the controller has to implement measures to systematically ensure that all current and future processing activities include appropriate technical and organisational measures.<ref name=":1">''Hötzendorfer, et al.,'' in Knyrim, DatKomm, Article 25 GDPR, margin numbers 22 (Manz 2022).</ref><blockquote><u>Example</u>: In order to fulfil its obligation under Article 25(1) GDPR, a controller implements a privacy by design process for every new processing activity and audits existing processing activities each year. </blockquote> | ||
==== And to integrate the necessary safeguards into the processing ==== | ==== And to integrate the necessary safeguards into the processing ==== | ||
The technical and organisational measures implemented by the controller must additionally be designed to integrate the necessary safeguards into the processing in order to meet the requirements of the GDPR and protect the rights of data subjects. | The technical and organisational measures implemented by the controller must additionally be designed to integrate the necessary safeguards into the processing in order to meet the requirements of the GDPR and protect the rights of data subjects. | ||
From the term "safeguards" cannot be derived that any specific technical and organisational measures have to be integrated. Rather, the terms "safeguards" and "technical and organisational measures" are interchangeable.<ref>''Baumgartner'', in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 24 GDPR, margin number 19 (C.H. Beck 2024, 3rd Edition).</ref> | From the term "safeguards", it cannot be derived that any specific technical and organisational measures have to be integrated. Rather, the terms "safeguards" and "technical and organisational measures" are interchangeable.<ref>''Baumgartner'', in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 24 GDPR, margin number 19 (C.H. Beck 2024, 3rd Edition).</ref> | ||
The controller's obligation to implement the necessary safeguards into the processing in order to meet the requirements of the GDPR can be understood as a responsibility to adopt internal policies and measures which ensure that | The controller's obligation to implement the necessary safeguards into the processing in order to meet the requirements of the GDPR can be understood as a responsibility to adopt internal policies and measures which ensure that the GDPR's obligations are taken into account whenever any new processing activity is planned or an existing processing activity is subject to any change.<ref>''Nolte, Werkmeister'' in Gola, Heckmann, Datenschutz-Grundverordnung, Article 25 GDPR, margin number 20 (C.H. Beck 2022, 3rd Edition). </ref> | ||
Specifically, the controller has to integrate safeguards ensuring the protection of the rights of the data subjects. Therefore, the controller should not passively react to requests by data subjects, but already | Specifically, the controller has to integrate safeguards ensuring the protection of the rights of the data subjects. Therefore, the controller should not passively react to requests by data subjects, but should already have considered data subjects' rights and anticipate requests by data subjects in accordance with Chapter III of the GDPR.<ref>''Nolte, Werkmeister'' in Gola, Heckmann, Datenschutz-Grundverordnung, Article 25 GDPR, margin number 19 (C.H. Beck 2022, 3rd Edition).</ref> <blockquote><u>Example</u>: A data broker collects personal data from a vast amount of data. It has to implement technical and organisational measures that ensure that e.g. (i) information is provided to the data subjects in accordance with Article [[Article 13 GDPR|13]] and [[Article 14 GDPR|14]] GDPR and (ii) even a vast amount of access requests can be efficiently answered without undue delay in accordance with Article [[Article 12 GDPR|12]] and [[Article 15 GDPR|15]] GDPR. </blockquote> | ||
===(2) Data protection by default=== | ===(2) Data protection by default=== | ||
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One could argue that this clarification is redundant since the controller is already obliged, under paragraph 1, to adopt appropriate measures to ensure the effective adherence to the data protection principles, including data minimisation ([[Article 5 GDPR|Article 5(1)(c) GDPR]]). However, although the principles of data protection by design and by default may look similar at first glance, there are considerable differences between them. | One could argue that this clarification is redundant since the controller is already obliged, under paragraph 1, to adopt appropriate measures to ensure the effective adherence to the data protection principles, including data minimisation ([[Article 5 GDPR|Article 5(1)(c) GDPR]]). However, although the principles of data protection by design and by default may look similar at first glance, there are considerable differences between them. | ||
First, "by design" is broader than "by default", since the focus of the latter is | First, "by design" is broader than "by default", since the focus of the latter is adherence with the principles of data minimisation, storage, purpose limitation and confidentiality. Whereas the "by design" principle focuses more on the development stages of the processing activity, "by default" is more about the end-result: i.e. ensuring the settings are configured in such a way that data minimisation and confidentiality are ensured.<ref>''Bygrave'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 25 GDPR, p. 577 (Oxford University Press 2020). | ||
</ref> | </ref> | ||
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To ensure the highest "default" data protection standard, the controller must implement appropriate technical and organisational measures. With regard to the meaning of "appropriate" and "technical and organisational measures" please see to the analysis in paragraph (1) and the commentary on [[Article 24 GDPR|Article 24 GDPR]]. | To ensure the highest "default" data protection standard, the controller must implement appropriate technical and organisational measures. With regard to the meaning of "appropriate" and "technical and organisational measures" please see to the analysis in paragraph (1) and the commentary on [[Article 24 GDPR|Article 24 GDPR]]. | ||
In the context of this paragraph the measures must ensure that the respective settings are in place for each processing activity. Therefore, just as it is the case for compliance with the privacy by design principle, the implementation of internal policies can be a suitable measure to ensure that for each processing activity, by default, only necessary personal data are processed. <blockquote><u>Example</u>: A controller puts a privacy by default policy in place that obliges its employees to specify (i) the specific purpose of the processing activity as well as (ii) the necessary amount of personal data that is needed for the purpose, (iii) the necessary | In the context of this paragraph, the measures must ensure that the respective settings are in place for each processing activity. Therefore, just as it is the case for compliance with the privacy by design principle, the implementation of internal policies can be a suitable measure to ensure that for each processing activity, by default, only necessary personal data are processed. <blockquote><u>Example</u>: A controller puts a privacy by default policy in place that obliges its employees to specify (i) the specific purpose of the processing activity as well as (ii) the necessary amount of personal data that is needed for the purpose, (iii) the necessary extent of the processing of that data, (iv) the necessary period for which the data has to be stored and (v) who needs access to that data. </blockquote>Although measures should be implemented to ensure compliance with every data protection principle (see paragraph 1), the measures in the context of Article 25(2) must be capable to specifically ensure the principles of data minimisation, storage limitation, purpose limitation and confidentiality.<ref>EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 49 (available [https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-42019-article-25-data-protection-design-and_en here]).</ref> | ||
In contrast to the privacy by design principle the privacy by default provision of Article 25(2) GDPR does not provide for a proportionality assessment taking into account the the cost of implementation, the nature, scope, context and purposes of processing and the risks posed by the processing for the data subjects. The measures implemented by the controller must therefore ensure privacy-friendly default settings irrespective of these factors.<ref>''Hötzendorfer'', ''Kastelitz'', ''Tschohl'', in Knyrim, DatKomm, Article 25 GDPR, margin numbers 39 (Manz 2022).</ref> | In contrast to the privacy by design principle, the privacy by default provision of Article 25(2) GDPR does not provide for a proportionality assessment taking into account the the cost of implementation, the nature, scope, context and purposes of processing and the risks posed by the processing for the data subjects. The measures implemented by the controller must therefore ensure privacy-friendly default settings irrespective of these factors.<ref>''Hötzendorfer'', ''Kastelitz'', ''Tschohl'', in Knyrim, DatKomm, Article 25 GDPR, margin numbers 39 (Manz 2022).</ref> | ||
==== Ensuring that by default, only personal data which are necessary for each specific purpose of the processing are processed ==== | ==== Ensuring that by default, only personal data which are necessary for each specific purpose of the processing are processed ==== | ||
The word "''default''" comes from computer science | The word "''default''" comes from computer science. It refers to the pre-existing or pre-selected value of a configurable setting. The principle of data protection by default means that a product or service should have the most data protection-friendly settings configured when the product or service is first turned on or used.<ref>''Hartung'', in Kühling, Buchner, DS-GVO BDSG, Article 25, margin number 25 (C.H. Beck 2024, 4th Edition).</ref> Hence, the "factory presets", in case of electronic products, should ensure that the processing is limited to what is strictly necessary in order to achieve the (lawful) purpose of the processing activity.<ref>EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 42 (available [https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-42019-article-25-data-protection-design-and_en here]).</ref> | ||
In cases where the controller utilizes third-party or off-the-shelf software, it is crucial to conduct an assessment of the product. Any functions within the software that lack a legal basis or are incompatible with the intended purposes of processing must be deactivated or disabled.<ref>If this is not possible the controller should refrain from using that software.</ref> Similar considerations extend to the organisational measures which should be designed to initially handle only the minimum necessary amount of personal data required for the specific operations. This becomes particularly significant when granting access to data to employees with diverse roles and different access necessities.<ref>EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 45 (available [https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-42019-article-25-data-protection-design-and_en here]).</ref> | In cases where the controller utilizes third-party or off-the-shelf software, it is crucial to conduct an assessment of the product. Any functions within the software that lack a legal basis or are incompatible with the intended purposes of processing must be deactivated or disabled.<ref>If this is not possible the controller should refrain from using that software.</ref> Similar considerations extend to the organisational measures, which should be designed to initially handle only the minimum necessary amount of personal data required for the specific operations. This becomes particularly significant when granting access to data to employees with diverse roles and different access necessities.<ref>EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 45 (available [https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-42019-article-25-data-protection-design-and_en here]).</ref> | ||
It is subject of an ongoing debate | It is subject of an ongoing debate whether it is compliant with this provision to force data subjects to make specific choices with regard to data protection settings (mandated choice), since this could potentially be overwhelming to data subjects.<ref>''Hartung'', in Kühling, Buchner, DS-GVO BDSG, Article 25 GDPR, margin number 25 (C.H. Beck 2024, 4th Edition); ''Hötzendorfer'', ''Kastelitz'', ''et al.'', DatKomm, Article 25 GDPR, margin number 40 (Manz 2022).</ref> | ||
==== That obligation applies to .... ==== | ==== That obligation applies to .... ==== | ||
===== The amount of personal data collected ===== | ===== The amount of personal data collected ===== | ||
Controllers should conduct a sound analysis of the volume, types, categories, and level of detail of personal data that is necessary for their processing activities. It is important to compare the risks arising from the envisaged processing with the risks that may be posed by the collection of smaller amounts or less detailed information about data subjects. Regardless of the specific circumstances, the default settings should not allow for the collection of personal data that is unnecessary for the intended processing purpose. This means that if certain categories of personal data are determined to be unnecessary or if less detailed information is sufficient instead of highly granular data, excessive shall not be collected in the first place.<ref>EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 49 (available [https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-42019-article-25-data-protection-design-and_en here]).</ref> | Controllers should conduct a sound analysis of the volume, types, categories, and level of detail of personal data that is necessary for their processing activities. It is important to compare the risks arising from the envisaged processing with the risks that may be posed by the collection of smaller amounts or less detailed information about data subjects. Regardless of the specific circumstances, the default settings should not allow for the collection of personal data that is unnecessary for the intended processing purpose. This means that if certain categories of personal data are determined to be unnecessary or if less detailed information is sufficient instead of highly granular data, excessive data shall not be collected in the first place.<ref>EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 49 (available [https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-42019-article-25-data-protection-design-and_en here]).</ref> | ||
===== The extent of their processing ===== | ===== The extent of their processing ===== | ||
Line 309: | Line 309: | ||
===== The period of their storage ===== | ===== The period of their storage ===== | ||
The controller is required to restrict the retention period of personal data to what is necessary for the specific purpose of processing. Once the personal data is no longer needed for its intended purpose, it should be either deleted or anonymized by default. The duration of the retention period will vary depending on the particular processing purpose. This obligation is directly connected to the principle of storage limitation stated in Article 5(1)(e) | The controller is required to restrict the retention period of personal data to what is necessary for the specific purpose of processing. Once the personal data is no longer needed for its intended purpose, it should be either deleted or anonymized by default. The duration of the retention period will vary depending on the particular processing purpose. This obligation is directly connected to the principle of storage limitation stated in [[Article 5 GDPR#1e|Article 5(1)(e) GDPR]]. By default, the controller should establish systematic procedures for data deletion or anonymization that are integrated into the processing operations.<ref>Anonymization of personal data is "a''n alternative to deletion, provided that all the relevant contextual elements are taken into account and the likelihood and severity of the risk, including the risk of reidentification, are regularly assessed''." EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 54 (available [https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-42019-article-25-data-protection-design-and_en here]).</ref> | ||
===== Their accessibility ===== | ===== Their accessibility ===== | ||
Article 25(2) clarifies that, by default, only the minimum number of individuals within the controller's organization (or indirectly, the processor's organization), should have access to personal data. This entails the adoption of technical and organizational measures that restrict personnel access to databases.<ref>EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 55 (available [https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-42019-article-25-data-protection-design-and_en here]).</ref> In line with this logic, the latter part of Article 25(2) further clarifies that the data subject should always be consulted before their personal data is made available to an indefinite number of individuals, or in other words, before it is made public (see next point). | Article 25(2) clarifies that, by default, only the minimum number of individuals within the controller's organization (or indirectly, the processor's organization), should have access to personal data. This entails the adoption of technical and organizational measures that restrict personnel access to databases.<ref>EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 55 (available [https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-42019-article-25-data-protection-design-and_en here]).</ref> In line with this logic, the latter part of Article 25(2) further clarifies that the data subject should always be consulted before their personal data is made available to an indefinite number of individuals, or in other words, before it is made public (see next point). | ||
==== In particular, such measures shall ensure that by default personal data are not made accessible | ==== In particular, such measures shall ensure that by default personal data are not made accessible to an indefinite number of natural persons without the data subject's intervention ==== | ||
Article 25(2) GDPR specifies that the privacy by default principle encompasses the controller's obligation to implement technical and organisational measures that ensure that personal data are not made accessible to an indefinite number of natural persons without the individual data subject making a choice to do so i.e. to make the data publicly available. | Article 25(2) GDPR specifies that the privacy by default principle encompasses the controller's obligation to implement technical and organisational measures that ensure that personal data are not made accessible to an indefinite number of natural persons without the individual data subject making a choice to do so (i.e. to make the data publicly available). | ||
Making personal data available to the public (e.g. | Making personal data available to the public (e.g. on the internet) could result to unforeseeable and unintended future data processing. Therefore, the data subject should have an opportunity to make a choice about such a publication.<ref>EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 57 (available [https://www.edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-42019-article-25-data-protection-design-and_de here]).</ref> | ||
This provision is specifically directed to social media providers who have the responsibility to implement privacy settings preventing the public availability of user data by default. Of course the controller can give the data subjects the option to change this setting and make their personal data publicly available.<ref>''Hartung'', in Kühling, Buchner, DS-GVO BDSG, Article 25 GDPR, margin number 26 (C.H. Beck 2024, 4th Edition).</ref> | This provision is specifically directed to social media providers who have the responsibility to implement privacy settings preventing the public availability of user data by default. Of course the controller can give the data subjects the option to change this setting and make their personal data publicly available.<ref>''Hartung'', in Kühling, Buchner, DS-GVO BDSG, Article 25 GDPR, margin number 26 (C.H. Beck 2024, 4th Edition).</ref> |
Revision as of 12:31, 15 July 2024
Legal Text
1. Taking into account the state of the art, the cost of implementation and the nature, scope, context and purposes of processing as well as the risks of varying likelihood and severity for rights and freedoms of natural persons posed by the processing, the controller shall, both at the time of the determination of the means for processing and at the time of the processing itself, implement appropriate technical and organisational measures, such as pseudonymisation, which are designed to implement data-protection principles, such as data minimisation, in an effective manner and to integrate the necessary safeguards into the processing in order to meet the requirements of this Regulation and protect the rights of data subjects.
2. The controller shall implement appropriate technical and organisational measures for ensuring that, by default, only personal data which are necessary for each specific purpose of the processing are processed. That obligation applies to the amount of personal data collected, the extent of their processing, the period of their storage and their accessibility. In particular, such measures shall ensure that by default personal data are not made accessible without the individual's intervention to an indefinite number of natural persons.
3. An approved certification mechanism pursuant to Article 42 may be used as an element to demonstrate compliance with the requirements set out in paragraphs 1 and 2 of this Article.
Relevant Recitals
Commentary
Article 25 GDPR establishes the idea of data protection "by design and by default”.[1] Accordingly, controllers must put in place appropriate technical and organisational measures that are designed to implement data protection principles. This means that when programming, designing and conceptualizing systems and programs, as well as when acquiring systems and services from third parties, the relevant data protection aspects should be taken into account and integrated into the technology.[2] The first paragraph describes the principles of data protection by design in more detail. The second paragraph expands on this by describing the principles of data protection by default. The third paragraph explains that an approved certification mechanism, pursuant to Article 42, may be used as an element to demonstrate compliance.[3]
The obligations under Article 25 are directed specifically at the controller (Article 4(7) GDPR) which remains accountable for fulfilling all legal obligations related to data processing. Processors are indirectly affected since, under Article 28(1) GDPR, a controller shall only use processors providing the same standards as foreseen under Article 25 GDPR.[4] However, ultimately the controller is responsible for the compliance of the processing carried out by their processors and sub-processors.[5]
Manufacturers or producers of systems are not directly addressed by the GDPR. Nevertheless, as suggested by Recital 78, they are influenced by data protection laws, either indirectly or due to market dynamics. This encourages manufacturers and service providers to offer and introduce products, systems, and services that prioritize data protection.[6]
EDPB Guidelines: Guidelines 4/2019 on Article 25 Data Protection by Design and by Default
(1) Data protection by design
The controller must implement technical and organisational measures that are capable of effectively realizing the data protection principles set out in Article 5 GDPR, meeting the requirements of the GDPR and ensuring the protection of the data subject's rights (including Articles 12-22). This should already happen when the controller determines the means of the processing, i.e. in the design process. This ensures that appropriate technical and organisational measures are implemented at the beginning of the processing and throughout the processing itself. These obligations must be addressed with practical and effective solutions.[7] Therefore, the controller should implement measures that systematically guarantee that all current and future processing activities include appropriate technical and organisational measures.[8]
Taking into account...
Article 25 (1) lists elements that the controller has to take into account when determining the technical and organisational measures of a specific processing operation.
State of the art
In general, this means, that the controller has to be aware of and take into account the latest developments in its field and has to stay up-to-date with technology. The idea is that a controller shall never go below what is commonly considered the appropriate technological standard at a given time. In detail, the interpretation of this criterion can be challenging, requiring appropriate technical expertise and input from experts. Guidelines by supervisory authorities can also be helpful to interpret the current state of the art.[9] But since the state of the art is a dynamic concept which has to be assessed continuously and in the context of the technological progress, even existing standards or guidelines can only be indicative for the assessment whether respective measures of the controller still suffice.[10]
The "state of the art" criterion does not exclusively apply to technical measures. Also the organisational measures like data protection and IT-security trainings or policies of the controller have to reflect any developments in the state of the art.[11]
Cost of implementation
Regularly the controller has a choice between different technical and organisational measures. When deciding which technical and organisational measures to implement, the controller can take the cost of implementation of those measures into account and is not forced to allocate an excessive amount of resources for one specific measure if there are alternative measures available that are less resource-intensive yet still effective. Such costs include not only costs necessary to develop privacy compliant technologies, but more broadly all business resources allocated to achieve data protection goals (e.g. efforts by individual employees).[12]
However, it is important to stress that the implementation cost should be taken into consideration when incorporating data protection by design, rather than being used as a justification for not implementing it. Whatever measures the controller implements, they have to be effective and ensure that all the requirements of the GDPR are met and the rights of data subjects are protected.[13]
Nature, scope, context and purpose of processing
These criteria have the same meaning as in Article 24(1) and Article 32(1). See therefore commentary on Article 24 GDPR.
Risks of varying likelihood and severity for rights and freedoms of natural persons posed by the processing
The GDPR imposes the duty to perform a risk assessment in a number of its provisions like in Articles 24, 25, 32 and 35. The risk assessment should always be performed with regard to a given processing activity and is usually performed in connection with all the GDPR provisions demanding a risk assessment. Since the state of the art as well as the specific conditions of a processing activity regularly change, the risk assessment should be performed in regular intervals and when it comes to changes in the processing activity. For detailed remarks see therefore commentary on Article 24 GDPR.
Example: The provider of a newspaper offers high quality news articles against payment. The provider plans to give visitors of its website the alternative option to "pay" for the article by consenting to the processing of their personal data for behavioural advertising. According to the risk assessment foreseen in Article 25(1) GDPR the controller takes into account the particular risks associated with a lack of freely given consent, which constitutes a violation of the lawfulness principle and ends up implementing an additional free version without behavioural advertising[14] in order to provide an adequate alternative to the consent option.[15]
At the time of the determination of the means [...] and at the time of processing
Controllers must assess the implementation of appropriate measures "at the time of the determination of the means for processing" and "at the time of the processing itself". Therefore, the controller must already consider this obligation in the design stage of the processing activity - i.e. when it considers how the processing will be conducted and which mechanisms and tools it will use for the processing.[16] Hence, the privacy by design principle should be considered as early as possible in order to select appropriate processing mechanisms (e.g. software, hardware, processors) right away and to avoid later changes in the basic components of the processing activity.[17]
Example: A bank wants to implement a whistleblower tool for its employees. According to the privacy by design principle set out in Article 25(1) GDPR, the bank, as a controller, has to consider the requirements of the GDPR already during the design stage of the processing activity. Therefore, it has to consider how it can ensure compliance with data protection principles and protect the rights of data subjects (e.g. by choosing a GDPR compliant software by a third party and defining the strictly necessary information collected by whistleblower).
Obviously the obligations also apply throughout the live circle of the processing activity. Therefore, the controller must also consider the privacy by design principle when it considers any later changes in the processing activity.
This can lead to problems for processing activities that were already in place before the GDPR entered into force and that cannot easily be changed. However, Article 25 GDPR also applies to such preexisting systems. Controllers must re-asses their means of processing if the systems they use are outdated and fail to ensure compliance with the GDPR.[18] Because the state of the art continuously changes, updating systems will be a continuous and necessary practical component of adhering to the privacy by design principle during ongoing processing activities.[19]
Shall implement appropriate technical and organizational measures
Technical and organisational measures
The "technical and organisational measures" mentioned in this provision are in principle the same measures mentioned in other provisions of the GDPR like Articles 24 and 32. Only the concrete aim of the measures is specified somewhat differently in the various provisions.
Article 25 GDPR specifically mentions pseudonymisation (Article 4(5) GDPR) as a technical and organisational measure. It notes that such measures should be designed (i) to implement data-protection principles, such as (but not limited to) data minimisation (Article 5(1)(c) GDPR), in an effective manner and (ii) to integrate the integrate the necessary safeguards into the processing in order to meet the requirements of the GDPR and protect the rights of data subjects.
For detailed remarks on "technical and organisational measures", see the commentary on Article 24 GDPR.
Appropriate measures
"Appropriate" is a technical or organisational measure that effectively addresses the issues posed by the specific processing and circumstances. In general, the "appropriateness" of measures chosen by the controller is a point upon which several GDPR provisions touch, most notably - alongside Article 25 - Articles 24 and 32. The EDPS Guidelines on assessing the proportionality of measures that limit the fundamental rights to privacy and to the protection of personal data[20] can be used as a starting point to gain some insight.
Article 25(1) GDPR mentions pseudonymisation as an example of an appropriate technical and organisational measure. The EDPB Guidelines list other potential suitable measures - always depending on the context and the associated risks:
- 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; and
- obligating processors contractually to implement specific data minimisation practices.[21]
Specifically important for the timely consideration of data protection principles is in the design stage of a processing activity is the implementation of internal policies obliging the controller's employees to take the requirements of the GDPR into account when they start to determine the means for the processing.[22]
Example: A financial institution requires its product development team to complete a "privacy by design information sheet" during the design phase of new products. The team has to collect specific information regarding the processing in the document and already clarify how the data protection principles and data subject's rights are secured.
Furthermore, in line with the accountability principle stated in Article 5(2) GDPR, the controller should adopt additional measures to demonstrate the effectiveness of their choices.[23]
Designed to implement data-protection principles in an effective manner
The technical and organisational measures implemented by the controller must be designed to implement data-protection principles in an effective manner. The provision explicitly mentions data minimization (Article 5(1)(c) GDPR) as such a principle but the provision is applicable to all principles listed in Article 5(1) GDPR.[24]
While this provision does not require the implementation of any specific technical and organisational measure the controller is obliged to find measures that effectively protect and ensure the compliance with the data protection principles. In order to decide if a specific measure is effective (and therefore appropriate) in implementing data protection principles the controller has to consider the context of the specific processing.[25]
In order to fulfil this obligation effectively the controller has to implement measures to systematically ensure that all current and future processing activities include appropriate technical and organisational measures.[8]
Example: In order to fulfil its obligation under Article 25(1) GDPR, a controller implements a privacy by design process for every new processing activity and audits existing processing activities each year.
And to integrate the necessary safeguards into the processing
The technical and organisational measures implemented by the controller must additionally be designed to integrate the necessary safeguards into the processing in order to meet the requirements of the GDPR and protect the rights of data subjects.
From the term "safeguards", it cannot be derived that any specific technical and organisational measures have to be integrated. Rather, the terms "safeguards" and "technical and organisational measures" are interchangeable.[26]
The controller's obligation to implement the necessary safeguards into the processing in order to meet the requirements of the GDPR can be understood as a responsibility to adopt internal policies and measures which ensure that the GDPR's obligations are taken into account whenever any new processing activity is planned or an existing processing activity is subject to any change.[27]
Specifically, the controller has to integrate safeguards ensuring the protection of the rights of the data subjects. Therefore, the controller should not passively react to requests by data subjects, but should already have considered data subjects' rights and anticipate requests by data subjects in accordance with Chapter III of the GDPR.[28]
Example: A data broker collects personal data from a vast amount of data. It has to implement technical and organisational measures that ensure that e.g. (i) information is provided to the data subjects in accordance with Article 13 and 14 GDPR and (ii) even a vast amount of access requests can be efficiently answered without undue delay in accordance with Article 12 and 15 GDPR.
(2) Data protection by default
Article 25(2) GDPR requires the controller to implement appropriate technical and organizational measures to ensure that, by default, only personal data necessary for the specific processing purpose are processed. This provision establishes an explicit connection with the principles of data minimization, storage limitation and purpose limitation.
One could argue that this clarification is redundant since the controller is already obliged, under paragraph 1, to adopt appropriate measures to ensure the effective adherence to the data protection principles, including data minimisation (Article 5(1)(c) GDPR). However, although the principles of data protection by design and by default may look similar at first glance, there are considerable differences between them.
First, "by design" is broader than "by default", since the focus of the latter is adherence with the principles of data minimisation, storage, purpose limitation and confidentiality. Whereas the "by design" principle focuses more on the development stages of the processing activity, "by default" is more about the end-result: i.e. ensuring the settings are configured in such a way that data minimisation and confidentiality are ensured.[29]
Second, the underlying concept of the principle of data protection by default is that the controller implements measures to ensure that each processing activity is configured in a way that per default the available settings ensure that the processing of personal data does not exceed what is necessary for the specific purpose of the processing.[30] In other words, unless the user decides otherwise, the default settings shall be the most privacy-friendly. This is particularly significant, considering the prevailing tendency to accumulate personal data beyond reasonable necessity, especially in the realm of the Internet and mobile applications.[31]
Example: A company that produces an operating system for a computer has, inter alia, to consider that a customer might want to change their settings in such a way that they can amend their data protection settings themselves, as follows from Article 25(1) GDPR. However, when this computer is delivered to the customer, the default settings within the software must already be set in such a way that the data protection principles of data minimisation and confidentiality are already ensured, since this follows from Article 25(2) GDPR.
The controller
The addressee of the provision is the controller. See the commentary under paragraph 1 for more details on this point and the commentary on Article 4(7) GDPR for more information on the definition of the controller.
Even though the provision is particularly relevant for the standard settings of software products it should be noted that the manufacturer is not an addressee of the provision.[32]
Shall implement appropriate technical and organisational measures
To ensure the highest "default" data protection standard, the controller must implement appropriate technical and organisational measures. With regard to the meaning of "appropriate" and "technical and organisational measures" please see to the analysis in paragraph (1) and the commentary on Article 24 GDPR.
In the context of this paragraph, the measures must ensure that the respective settings are in place for each processing activity. Therefore, just as it is the case for compliance with the privacy by design principle, the implementation of internal policies can be a suitable measure to ensure that for each processing activity, by default, only necessary personal data are processed.
Example: A controller puts a privacy by default policy in place that obliges its employees to specify (i) the specific purpose of the processing activity as well as (ii) the necessary amount of personal data that is needed for the purpose, (iii) the necessary extent of the processing of that data, (iv) the necessary period for which the data has to be stored and (v) who needs access to that data.
Although measures should be implemented to ensure compliance with every data protection principle (see paragraph 1), the measures in the context of Article 25(2) must be capable to specifically ensure the principles of data minimisation, storage limitation, purpose limitation and confidentiality.[33]
In contrast to the privacy by design principle, the privacy by default provision of Article 25(2) GDPR does not provide for a proportionality assessment taking into account the the cost of implementation, the nature, scope, context and purposes of processing and the risks posed by the processing for the data subjects. The measures implemented by the controller must therefore ensure privacy-friendly default settings irrespective of these factors.[34]
Ensuring that by default, only personal data which are necessary for each specific purpose of the processing are processed
The word "default" comes from computer science. It refers to the pre-existing or pre-selected value of a configurable setting. The principle of data protection by default means that a product or service should have the most data protection-friendly settings configured when the product or service is first turned on or used.[35] Hence, the "factory presets", in case of electronic products, should ensure that the processing is limited to what is strictly necessary in order to achieve the (lawful) purpose of the processing activity.[36]
In cases where the controller utilizes third-party or off-the-shelf software, it is crucial to conduct an assessment of the product. Any functions within the software that lack a legal basis or are incompatible with the intended purposes of processing must be deactivated or disabled.[37] Similar considerations extend to the organisational measures, which should be designed to initially handle only the minimum necessary amount of personal data required for the specific operations. This becomes particularly significant when granting access to data to employees with diverse roles and different access necessities.[38]
It is subject of an ongoing debate whether it is compliant with this provision to force data subjects to make specific choices with regard to data protection settings (mandated choice), since this could potentially be overwhelming to data subjects.[39]
That obligation applies to ....
The amount of personal data collected
Controllers should conduct a sound analysis of the volume, types, categories, and level of detail of personal data that is necessary for their processing activities. It is important to compare the risks arising from the envisaged processing with the risks that may be posed by the collection of smaller amounts or less detailed information about data subjects. Regardless of the specific circumstances, the default settings should not allow for the collection of personal data that is unnecessary for the intended processing purpose. This means that if certain categories of personal data are determined to be unnecessary or if less detailed information is sufficient instead of highly granular data, excessive data shall not be collected in the first place.[40]
The extent of their processing
Processing activities involving personal data must adhere to the principle of necessity. While multiple processing operations may contribute to a specific purpose, it does not imply that all types and frequencies of processing can be conducted on the data. Controllers should exercise caution to ensure that they do not exceed the boundaries of "compatible purposes" as outlined in Article 6(4) and consider what processing activities would be within the reasonable expectations of data subjects. It should be noted that the fact that some data was obtained by and is available to the controller since it is necessary for a specific purpose does not not justify the unrestricted or excessive processing of that data.[41]
The period of their storage
The controller is required to restrict the retention period of personal data to what is necessary for the specific purpose of processing. Once the personal data is no longer needed for its intended purpose, it should be either deleted or anonymized by default. The duration of the retention period will vary depending on the particular processing purpose. This obligation is directly connected to the principle of storage limitation stated in Article 5(1)(e) GDPR. By default, the controller should establish systematic procedures for data deletion or anonymization that are integrated into the processing operations.[42]
Their accessibility
Article 25(2) clarifies that, by default, only the minimum number of individuals within the controller's organization (or indirectly, the processor's organization), should have access to personal data. This entails the adoption of technical and organizational measures that restrict personnel access to databases.[43] In line with this logic, the latter part of Article 25(2) further clarifies that the data subject should always be consulted before their personal data is made available to an indefinite number of individuals, or in other words, before it is made public (see next point).
In particular, such measures shall ensure that by default personal data are not made accessible to an indefinite number of natural persons without the data subject's intervention
Article 25(2) GDPR specifies that the privacy by default principle encompasses the controller's obligation to implement technical and organisational measures that ensure that personal data are not made accessible to an indefinite number of natural persons without the individual data subject making a choice to do so (i.e. to make the data publicly available).
Making personal data available to the public (e.g. on the internet) could result to unforeseeable and unintended future data processing. Therefore, the data subject should have an opportunity to make a choice about such a publication.[44]
This provision is specifically directed to social media providers who have the responsibility to implement privacy settings preventing the public availability of user data by default. Of course the controller can give the data subjects the option to change this setting and make their personal data publicly available.[45]
Even though this provision mentions the intervention of the "individual" it is reasonable to understand this as a reference to the "data subject".[46]
(3) Approved certification mechanism
A controller has to be able to demonstrate compliance with the principles of privacy by design and by default (Article 5(2) and 24(1) GDPR). The last paragraph of Article 25 offers the controller some guidance on how to demonstrate such compliance (similar to Article 24(3) GDPR). It states that an "approved certification mechanism pursuant to Article 42" may be used as an element to demonstrate compliance with the requirements set out in the first two paragraphs of the provision. Hence, just like in Article 24(3), it follows from the word "element" that such adherence only supports the assumption that the controller is compliant, and does not prove it.[47]
Decisions
→ You can find all related decisions in Category:Article 25 GDPR
References
- ↑ The Data Protection Directive did not contain a similar provision. Although Article 17 DPD Recital 46 had a similar thrust, the focus in those provisions revolved mostly around security. See, Bygrave, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 25 GDPR, p. 573 (Oxford University Press 2020). However, these concepts were not new: privacy by design -and default was originally conceptualized in the 1990s by the Canadian Information and Privacy Commissioner of Ontario. They held that, in order to be effective, data protection must be implemented ex ante. Hence, the controller must define the privacy requirements that need to be taken into account while engineering, and determine the default settings of the final product. See, Nolte, Werkmeister, in Gola, Datenschutz-Grundverordnung, Article 25 GDPR, margin number 1 (C.H. Beck 2022, 3rd Edition).
- ↑ Bygrave, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 25 GDPR, p. 576 (Oxford University Press 2020).
- ↑ Hartung, in Kühling, Buchner, DS-GVO BDSG, Article 25, margin number 30 (C.H. Beck 2024, 4th Edition).
- ↑ Article 28(1) partially repeats the wording of Article 25(1): "processors providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that processing will meet the requirements of this Regulation and ensure the protection of the rights of the data subject".
- ↑ EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 1 (available here).
- ↑ Hartung, in Kühling, Buchner, DS-GVO BDSG, Article 25 GDPR, margin numbers 13 (C.H. Beck 2024, 4th Edition). The Author also highlishts the existance of an ongoing discussion regarding whether the delivery of software that does not prioritize data protection could be considered a defect that holds the manufacturer liable (even without a specific agreement).
- ↑ EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 8 (available here).
- ↑ 8.0 8.1 Hötzendorfer, et al., in Knyrim, DatKomm, Article 25 GDPR, margin numbers 22 (Manz 2022).
- ↑ Hartung, in Kühling, Buchner, DS-GVO BDSG, Article 25 GDPR, margin numbers 21 (C.H. Beck 2024, 4th Edition). The Author also points out that the concept also defines limit to the controller's responsibility. Authorities cannot require the controller to go beyond the "state of the art".
- ↑ EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 20 (available here).
- ↑ EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 21 (available here).
- ↑ Hartung, in Kühling, Buchner, DS-GVO BDSG, Article 25, margin number 22 (C.H. Beck 2024, 4th Edition).
- ↑ Hartung, in Kühling, Buchner, DS-GVO BDSG, Article 25, margin number 22 (C.H. Beck 2024, 4th Edition)
- ↑ EDPB, 'Opinion 08/2024 on Valid Consent in the Context of Consent or Pay Models Implemented by Large Online Platforms', 17 April 2024, margin number 42 et seqq (available here).
- ↑ EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 30 (available here).
- ↑ EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 34 (available here).
- ↑ EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), marginal number 36 (available here).
- ↑ EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), marginal number 38 (available here).
- ↑ Nolte, Werkmeister, in Gola, Heckmann, Datenschutz-Grundverordnung, Article 25 GDPR, margin number 14 (C.H. Beck 2022, 3rd Edition).
- ↑ EDPS, ‘Guidelines on assessing the proportionality of measures that limit the fundamental rights to privacy and to the protection of personal data’, 19 December 2019 (available here).
- ↑ EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 9 (available here).
- ↑ Compare Recital 78 GDPR.
- ↑ EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 15 (available here).
- ↑ Baumgartner, in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 25 GDPR, margin number 19 (C.H. Beck 2024, 3nd Edition).
- ↑ EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 14 (available here).
- ↑ Baumgartner, in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 24 GDPR, margin number 19 (C.H. Beck 2024, 3rd Edition).
- ↑ Nolte, Werkmeister in Gola, Heckmann, Datenschutz-Grundverordnung, Article 25 GDPR, margin number 20 (C.H. Beck 2022, 3rd Edition).
- ↑ Nolte, Werkmeister in Gola, Heckmann, Datenschutz-Grundverordnung, Article 25 GDPR, margin number 19 (C.H. Beck 2022, 3rd Edition).
- ↑ Bygrave, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 25 GDPR, p. 577 (Oxford University Press 2020).
- ↑ Hartung, in Kühling, Buchner, DS-GVO BDSG, Article 25, margin number 25 (C.H. Beck 2024, 4th Edition).
- ↑ Hansen, in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 25 GDPR, margin number 40 (C.H. Beck 2019, 1st Edition); Hartung, in Kühling, Buchner, DS-GVO BDSG, Article 25 GDPR, margin number 24 (C.H. Beck 2024, 4th Edition).
- ↑ Hartung, in Kühling, Buchner, DS-GVO BDSG, Article 25 GDPR, margin number 25 (C.H. Beck 2024, 4th Edition).
- ↑ EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 49 (available here).
- ↑ Hötzendorfer, Kastelitz, Tschohl, in Knyrim, DatKomm, Article 25 GDPR, margin numbers 39 (Manz 2022).
- ↑ Hartung, in Kühling, Buchner, DS-GVO BDSG, Article 25, margin number 25 (C.H. Beck 2024, 4th Edition).
- ↑ EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 42 (available here).
- ↑ If this is not possible the controller should refrain from using that software.
- ↑ EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 45 (available here).
- ↑ Hartung, in Kühling, Buchner, DS-GVO BDSG, Article 25 GDPR, margin number 25 (C.H. Beck 2024, 4th Edition); Hötzendorfer, Kastelitz, et al., DatKomm, Article 25 GDPR, margin number 40 (Manz 2022).
- ↑ EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 49 (available here).
- ↑ EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 51 (available here).
- ↑ Anonymization of personal data is "an alternative to deletion, provided that all the relevant contextual elements are taken into account and the likelihood and severity of the risk, including the risk of reidentification, are regularly assessed." EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 54 (available here).
- ↑ EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 55 (available here).
- ↑ EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 57 (available here).
- ↑ Hartung, in Kühling, Buchner, DS-GVO BDSG, Article 25 GDPR, margin number 26 (C.H. Beck 2024, 4th Edition).
- ↑ Hartung, in Kühling, Buchner, DS-GVO BDSG, Article 25 GDPR, margin number 26 (C.H. Beck 2024, 4th Edition).
- ↑ Nolte, Werkmeister in Gola, Heckmann, Datenschutz-Grundverordnung, Article 25 GDPR, margin number 19 (C.H. Beck 2022, 3rd Edition).