Article 5 GDPR

← Article 5: Principles →
Chapter 1: General provisions Article 1: Subject-matter and objectives Article 2: Material scope Article 3: Territorial scope Article 4: Definitions Chapter 2: Principles Article 5: Principles relating to processing of personal data Article 6: Lawfulness of processing Article 7: Conditions for consent Article 8: Conditions applicable to child’s consent in relation to information society services Article 9: Processing of special categories of personal data Article 10: Processing of personal data relating to criminal convictions and offences Article 11: Processing which does not require identification Chapter 3: Rights of the data subject Article 12: Transparent information, communication and modalities for the exercise of the rights of the data subject Article 13: Information to be provided where personal data are collected from the data subject Article 14: Information to be provided where personal data have not been obtained from the data subject Article 15: Right of access by the data subject Article 16: Right to rectification Article 17: Right to erasure (‘right to be forgotten’) Article 18: Right to restriction of processing Article 19: Notification obligation regarding rectification or erasure of personal data or restriction of processing Article 20: Right to data portability Article 21: Right to object Article 22: Automated individual decision-making, including profiling Article 23: Restrictions Chapter 4: Controller and processor Article 24: Responsibility of the controller Article 25: Data protection by design and by default Article 26: Joint controllers Article 27: Representatives of controllers or processors not established in the Union Article 28: Processor Article 29: Processing under the authority of the controller or processor Article 30: Records of processing activities Article 31: Cooperation with the supervisory authority Article 32: Security of processing Article 33: Notification of a personal data breach to the supervisory authority Article 34: Communication of a personal data breach to the data subject Article 35: Data protection impact assessment Article 36: Prior consultation Article 37: Designation of the data protection officer Article 38: Position of the data protection officer Article 39: Tasks of the data protection officer Article 40: Codes of conduct Article 41: Monitoring of approved codes of conduct Article 42: Certification Article 43: Certification bodies Chapter 5: Transfers of personal data Article 44: General principle for transfers Article 45: Transfers on the basis of an adequacy decision Article 46: Transfers subject to appropriate safeguards Article 47: Binding corporate rules Article 48: Transfers or disclosures not authorised by Union law Article 49: Derogations for specific situations Article 50: International cooperation for the protection of personal data Chapter 6: Supervisory authorities Article 51: Supervisory authority Article 52: Independence Article 53: General conditions for the members of the supervisory authority Article 54: Rules on the establishment of the supervisory authority Article 55: Competence Article 56: Competence of the lead supervisory authority Article 57: Tasks Article 58: Powers Article 59: Activity reports Chapter 7: Cooperation and consistency Article 60: Cooperation between the lead supervisory authority and the other supervisory authorities concerned Article 61: Mutual assistance Article 62: Joint operations of supervisory authorities Article 63: Consistency mechanism Article 64: Opinion of the Board Article 65: Dispute resolution by the Board Article 66: Urgency procedure Article 67: Exchange of information Article 68: European Data Protection Board Article 69: Independence Article 70: Tasks of the Board Article 71: Reports Article 72: Procedure Article 73: Chair Article 74: Tasks of the Chair Article 75: Secretariat Article 76: Confidentiality Chapter 8: Remedies, liability and penalties Article 77: Right to lodge a complaint with a supervisory authority Article 78: Right to an effective judicial remedy against a supervisory authority Article 79: Right to an effective judicial remedy against a controller or processor Article 80: Representation of data subjects Article 81: Suspension of proceedings Article 82: Right to compensation and liability Article 83: General conditions for imposing administrative fines Article 84: Penalties Chapter 9: Specific processing situations Article 85: Processing and freedom of expression and information Article 86: Processing and public access to official documents Article 87: Processing of the national identification number Article 88: Processing in the context of employment Article 89: Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes Article 90: Obligations of secrecy Article 91: Existing data protection rules of churches and religious associations Chapter 10: Delegated and implementing acts Article 92: Exercise of the delegation Article 93: Committee procedure Chapter 11: Final provisions Article 94: Repeal of Directive 95: /46: /EC Article 95: Relationship with Directive 20: 02: /58: /EC Article 96: Relationship with previously concluded Agreements Article 97: Commission reports Article 98: Review of other Union legal acts on data protection Article 99: Entry into force and application

Legal Text

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’).

Relevant Recitals

Recital 39: Principles of Data Processing

Any processing of personal data should be lawful and fair. It should be transparent to natural persons that personal data concerning them are collected, used, consulted or otherwise processed and to what extent the personal data are or will be processed. The principle of transparency requires that any information and communication relating to the processing of those personal data be easily accessible and easy to understand, and that clear and plain language be used. That principle concerns, in particular, information to the data subjects on the identity of the controller and the purposes of the processing and further information to ensure fair and transparent processing in respect of the natural persons concerned and their right to obtain confirmation and communication of personal data concerning them which are being processed. Natural persons should be made aware of risks, rules, safeguards and rights in relation to the processing of personal data and how to exercise their rights in relation to such processing. In particular, the specific purposes for which personal data are processed should be explicit and legitimate and determined at the time of the collection of the personal data. The personal data should be adequate, relevant and limited to what is necessary for the purposes for which they are processed. This requires, in particular, ensuring that the period for which the personal data are stored is limited to a strict minimum. Personal data should be processed only if the purpose of the processing could not reasonably be fulfilled by other means. In order to ensure that the personal data are not kept longer than necessary, time limits should be established by the controller for erasure or for a periodic review. Every reasonable step should be taken to ensure that personal data which are inaccurate are rectified or deleted. Personal data should be processed in a manner that ensures appropriate security and confidentiality of the personal data, including for preventing unauthorised access to or use of personal data and the equipment used for the processing.

Recital 74: Controller Responsibility and Liability

The responsibility and liability of the controller for any processing of personal data carried out by the controller or on the controller's behalf should be established. In particular, the controller should be obliged to implement appropriate and effective measures and be able to demonstrate the compliance of processing activities with this Regulation, including the effectiveness of the measures. Those measures should take into account the nature, scope, context and purposes of the processing and the risk to the rights and freedoms of natural persons.

Commentary

Article 5 GDPR lays down all the guiding principles to be observed during personal data processing: lawfulness, fairness and transparency; purpose limitation; data minimisation; accuracy; storage limitation; integrity and confidentiality; and accountability. Some principles are further expressed or confirmed in other parts of the Regulation. For example, the transparency principle inspires Article 13 on the information provided before the processing. The principles of integrity and confidentiality principle are confirmed and specified by Articles 32 on security. Same discourse for one of the most innovative principles brought by the GDPR, the accountability principle, which is further developed in Articles 24 and 25.

(1) Principles

The principles of Article 5 GDPR are the "bottleneck" for the legality of any processing operation. Any controller or processor must comply with all elements of Article 5 GDPR.

(a) Lawfulness, Fairness and Transparency

Lawful

In order to be “lawful” a processing should comply with Article 6 GDPR (not coincidentally headed “Lawfulness of processing”) and its requirement to base any processing operation on at least one of the six legal bases it exhaustively lists.

Lawfulness, however, is not limited to compliance with Article 6. The European Union Agency for Fundamental Rights has affirmed that “the principle of lawful processing is also to be understood by reference to conditions for lawful limitations of the right to data protection or of the right to respect for private life in light of Article 52(1) of the Charter of Fundamental Rights of the European Union ('CPR') and of Article 8(2) ECHR”.

Therefore, any processing that violates the GDPR or any national provision would render the processing of data illegal.

Fair

The fairness element is an overall requirement that is inherently vague. Indeed, whether a certain processing operation is "fair" highly depends on the context. For these reasons, particularly welcomed are the recent EDPB Guidelines on data protection by design and by default. de Terwangne and Bygrave correctly point out that the "guidelines not only provide advice on how Article 25 GDPR may be operationalised but cast light on how the core principles of Article 5 shall be understood and applied in various hypothetical scenarios. Especially noteworthy is the guidelines’ explanation of the criterion of ‘fairness’ in Article 5(1)(a)".

In this perspective, the EDPB provides a non-exhaustive list of fairness elements which should always be respected while processing personal data. The list is particularly detailed and range from an high level of autonomy in controlling the processing to the right to fair algorithms and human intervention. Other important elements of fairness are officially recognized such as the data subjects' expectations to a reasonable use of their data, the right not be discriminated or exploited as a consequence of certain psychological weaknesses. Linked to the above seems also the controller-data subject (im)balance of power, often posed by certain intrusive profiling and processing operations. The EDPB also clarifies that no deception is allowed in data processing and that all options should be provided in an objective and neutral way, avoiding any deceptive or manipulative language or design.

Transparent

The transparency principle shall ensure the that data subject is fully aware of the processing of any personal data. Recital 39 GDPR contains a number of explanatory statements regarding the transparency principle. In particular, "it should be transparent to natural persons that personal data concerning them are collected, used, consulted or otherwise processed and to what extent the personal data are or will be processed." Data subjects should be "made aware of risks, rules, safeguards, and rights in relation to the processing [...] and how to exercise their rights." All information communicated should be "accessible and easy to understand" and in "clear and plain language".

(b) Purpose Limitation

While the controller is free to achieve any legitimate purpose, Article 5(1)(b) sets out the principle of purpose limitation in the processing of personal data. It requires that personal data be collected for specified, explicit and legitimate purposes and ensures that, after collection, data are not used for purposes that are incompatible with the original ones.

Specific

Because the purpose is meant to limit processing operations to a specific, pre-defined, aim, the purpose cannot be overly broad. Broad but meaningless purposes like "improving the user experience", "marketing", "research" or "IT security" are not sufficient if they are not further defined. The EDPB recently confirmed the above interpretation in its Guidelines on video surveillance. According to the EDPB, these monitoring purposes need to be specified for every surveillance camera in use and “[v]ideo surveillance based on the mere purpose of “safety” or “for your safety” is not sufficiently specific”.

Explicit

The purpose may not only be defined internally, but must be explicitly stated. This requirement is inextricably linked to the principle of transparency analysed in the previous paragraph. Indeed, a processing purpose that is made explicit (i.e. in a transparent manner) seems to be the only way to allow the data subject both a prior control (whether to accept a certain processing) and a subsequent one (hypothetically, following a request for access under Article 15 GDPR).

Legitimate

The use of personal data for the purpose must be legal. This may also include laws beyond GDPR and national data protection laws (like consumer or worker protection laws).

Further processing

The principle of purpose limitation shall ensure that controllers do not engage in "secondary use" ("further processing") of personal data when such processing is incompatible with the original purpose(s). For this reason, “[p]urposes for processing personal data should be determined from the very beginning, at the time of the collection of the personal data”.

According to the WP29 opinion, the compatibility of the further processing must be assessed taking into account various parameters such as the relationship between the original and the further purposes, the context of the data collection, the reasonable expectation of the data subject with regard to future processing, also considering the relationship between the data subject and the controller, the impact of further processing, the necessity of further processing and the existence of adequate safeguards for the data subject. For example, a doctor may not suddenly use their patient's health data for marketing purposes (secondary use).

Failure to comply with the compatibility requirement set forth in Article 5(1)(b) of the GDPR has serious consequences: the processing of personal data in a way incompatible with the purposes specified at collection is unlawful and therefore not permitted.

The above is true except than in three cases. In particular, the compatibility requirement is not needed if the further processing is (i) authorized by the data subject with their consent (Article 6(4) GDPR), (ii) based on a Union or Member State law which constitutes a necessary and proportionate measure in a democratic society to safeguard the objectives referred to in Article 23(1) GDPR or, finally, is meant for (iii) archiving purposes in the public interest, scientific or historical research purposes or statistical purposes (Article 5(1)(b) GDPR).

The purpose limitation principle extends to all recipients to whom the personal data have been disclosed. This is reflected in the notification obligation outlined in Article 19 GDPR.

(c) Data Minimisation

Unlike the previous Directive 95/46/EC, under which data processing did not have to be “excessive”, the GDPR specifies that it must be “limited to what is necessary” to achieve the purpose. This principle is therefore closely related to the concept of purpose and only makes sense if the latter is well defined by the controller. Once the two parameters are defined (processing and purpose), then it is possible to assess whether the processing is limited to what is necessary to achieve the purpose. If the outcome is negative (i.e. processing is excessive), the the operations are per se illegal. A controller must then review each step of a processing operation and also each data element towards the necessity to achieve the purpose. For instance, an online shop may not ask for more personal details than what is necessary to deliver the product.

(d) Accuracy

Article 5(1)(d) requires that data be accurate and, where necessary, kept up to date, and that all reasonable steps be taken to delete or rectify inaccurate data promptly (Recital 39).

Accuracy of data expresses a more general principle of the correct representation of the person at the most diverse levels and in the most diverse contexts and is one of the essential prerequisites of the right to informational self-determination. The WP29 points out that the principle of accuracy applies not only to facts that are processed about a person, but also to value judgments, in particular forecasts and correlations. This is particularly relevant for modern forms of automated profiling, artificial intelligence processing and self-learning systems. Indeed, value judgments can also be wrong if they are based on an erroneous factual basis, assume wrong premises or are the result of incorrect conclusions (e.g. that there is a correlation between a date and a person's solvency.

Which way to ensure that the data is accurate depends greatly on the circumstances of the case and the type of processing being done. Example: A public protocol is meant to record an incident of a  certain day. If elements of the protocol are inaccurate, they must be  corrected. At the same time, the age of the persons may not be changed  every time a person turns a year older.

Some provisions of the Regulation provide precise indications in relation to the type of intervention possible. Article 16 GDPR, for example, establishes the right of the data subject to obtain the integration of incomplete data. The following Article 17 allows the cancellation of the data in the presence of certain conditions including, for example, where the processing of that personal data is no longer necessary, or in case of revocation of consent or even if the data has been collected in an unlawful manner. In these cases, however, Article 19 GDPR provides that the exercise of rights is also communicated (with similar consequences) to all those who have received the data previously.

(e) Storage Limitation

The principle of storage limitation ensures a temporary limit on any processing operation. It follows that once all purposes of a processing operation are fulfilled, the operation must stop. The controller must inform the data subject about the storage period (or the criteria to define it, Article 13(2)(a) and Article 14(2)(a) GDPR) as well as ensure and demonstrate compliance with this principle (Article 5(2) GDPR). Therefore, storage periods should be defined internally before the processing begins.

Deletion or Anonymisation

The data can be deleted or anonymised. The latter means that any link between the data and the relevant person must be removed. Once the data does not relate to an identifiable person, Article 5(1)(e) GDPR is complied with.

Duty to Delete Data

GDPR imposes an active duty on the controller to delete data. A controller may not wait for an action by the data subject (e.g. under Article 17 GDPR) but must proactively delete information. In practice, the principle required that the controller implements deletion routines or automatic deletion systems.

Deadlines

The time of any deletion depends on the purpose. In many cases there are fixed legal deadlines, like record keeping duties or the statute of limitations that determine the need to keep data. In other cases the deletion depends on other factual elements (for example when a customer cancels a contract) that make continuous processing irrelevant for the purpose.

Exception

An exception to the principle of storage limitation is contained in the last part of Article 5(1)(d) in favor of processing for archiving, statistical, scientific and historical research purposes. In these cases, the GDPR allows "longer periods" of storage and in so doing takes into account the social interest in a functioning research and the preservation of the collective memory. In order for the exception to apply, however, technical and organizational measures must be put in place, as set out in Article 89(1).

(f) Integrity and Confidentiality

The GDPR requires technical and organisational measures to ensure that data is neither lost nor destroyed.

Integrity

A data subject may not only be harmed by processing of personal data but also from loss of data. If a hospital, for example, loses personal data of a patient, the patient may get incorrect treatment. The controller must ensure that data is not falsely deleted or altered. Threats to the integrity of personal data may come from the controller, third parties or from an accident.

Confidentiality

Confidentiality aims to protect the data against unauthorized access and thus against unauthorized processing. The controller must therefore also implement technical and organizational measures to ensure that personal data is not falsely disclosed, hacked or lost. This includes that unauthorized persons have neither access to the data nor to the devices with which they are processed (Recital 39). The requirements for data security are further defined in Article 32 GDPR.

(2) Accountability

Responsibility

The first part of Article 5(2) highlights that the controller is responsible for complying with Article 5(1) GDPR as well as with all other relevant provisions of the GDPR. More detailed provisions about the responsibilities of the controller can be found throughout the GDPR, e.g. Article 24 GDPR.

Burden of Proof

In addition to being responsible, the controller also has to be able to demonstrate compliance with the law. The provision does not further specify how a controller has to demonstrate compliance, as this is highly dependent on the processing operation and the type of organisation.

In most cases, written documentation will be used to demonstrate compliance. If applicable, a record of processing actives (see Article 30 GDPR) is a typical means to demonstrate compliance.

Decisions

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