Article 25 GDPR

← Article 25 - Data protection by design and by default →
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 25 - Data protection by design and by default

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

Recital 78: Appropriate Technical and Organisational Measures

The protection of the rights and freedoms of natural persons with regard to the processing of personal data require that appropriate technical and organisational measures be taken to ensure that the requirements of this Regulation are met. In order to be able to demonstrate compliance with this Regulation, the controller should adopt internal policies and implement measures which meet in particular the principles of data protection by design and data protection by default. Such measures could consist, inter alia, of minimising the processing of personal data, pseudonymising personal data as soon as possible, transparency with regard to the functions and processing of personal data, enabling the data subject to monitor the data processing, enabling the controller to create and improve security features. When developing, designing, selecting and using applications, services and products that are based on the processing of personal data or process personal data to fulfil their task, producers of the products, services and applications should be encouraged to take into account the right to data protection when developing and designing such products, services and applications and, with due regard to the state of the art, to make sure that controllers and processors are able to fulfil their data protection obligations. The principles of data protection by design and by default should also be taken into consideration in the context of public tenders.

Commentary

Article 25 GDPR establishes the idea of data protection "by design and by default”. Accordingly, controllers must put in place 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. 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.

(1) Data protection by design

The controller must implement every measure that is capable of effectively realizing the principles of correct data processing (Article 5), meeting the requirements of the whole Regulation and ensuring the protection of the data subject's rights (including Articles 12-22). This should happen from the beginning of the processing and throughout all subsequent stages. These obligations must be addressed with practical and effective solutions.

The controller

The main obligations under Article 25 are directed specifically at the controller 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 under Article 25 GDPR. 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.

Taking into account...

Article 25 (1) lists elements that the controller has to take into account when determining the measures of a specific processing operation.

State of the art

In general, this means, that the controller has to take into account the latest developments in its field and has to stay up-to-date with technology. In detail, the interpretation of this criterion can be challenging, requiring appropriate technical expertise and experts to resolve any doubts unless guidelines are provided by supervisory authorities.

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

However, "state of the art" also refers to organisational measures, meaning that the internal policies, training etc., must also be assessed accordingly. Although existing standards can indicate what is "state of the art", this assessment must be done continuously.

Cost of implementation

The cost factor does not impose an obligation on the controller to allocate an excessive amount of resources if there are alternative measures available that are less resource-intensive yet still effective. However, 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. Therefore, the chosen measures must guarantee that the controller's intended processing activities adhere to the principles, regardless of cost. Controllers should have the ability to manage overall costs in order to effectively implement all principles and, consequently, safeguard individual rights.

Nature, scope, context and purpose of processing

These criteria have the same meaning as in Article 24(1) and Article 32(1). The "nature" of the processing consists of its “the inherent characteristics” (i.e., special categories personal data, automatic decision-making, skewed power relations, unpredictable processing, difficulties for the data subject to exercise the rights, etc.); the "scope" refers to the size and range of the processing; the "context" relates to all relevant circumstances, and with "purpose", the law refers to the aim of the processing. According to the EDPB, "[t]hese factors should be interpreted consistently with their role in other provisions of the GDPR, such as Articles 24, 32 and 35, with the aim of designing data protection principles into the processing."

Risks of varying likelihood and severity for rights and freedoms of natural persons

The GDPR adopts a coherent risk based approach in many of its provisions, in Articles 24, 25, 32 and 35, with a view to identifying appropriate technical and organisational measures to protect individuals, their personal data and complying with the requirements of the GDPR.

During the risk analysis to ensure compliance with Articles 25, the controller is required to identify risks to the rights of data subjects that may arise from a breach of the principles. The likelihood and severity of these risks must be determined to implement effective measures for mitigating them. A controller shall always perform a data protection risk assessment with regard to a given processing activity.

EDPB: For example, a controller assesses the particular risks associated with a lack of freely given consent, which constitutes a violation of the lawfulness principle, in the course of the processing of personal data of children and young people under 18 as a vulnerable group, in a case where no other legal ground exists, and implements appropriate measures to address and effectively mitigate the identified risks associated with this group of data subjects.

The methods used in carrying out a Data Protection Impact Assessment (DPIA) under Article 35 may be useful in this regard.

Shall implement appropriate technical and organizational measures and necessary safeguards

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

Designed to implement data-protection principles in an effective manner and protecting data subjects' rights and freedoms

The measures to be implemented to ensure compliance with the principle of data protection by design, must be understood in a broad sense. Any method that implements the data protection principles "effectively" can be used. As the EDPB stipulates, the "appropriateness" requirement is closely related to the requirement of "effectiveness".

Both at the time..

Controllers must assess their implemented measures "at the time of the determination of the means for processing" and "at the time of the processing itself", therefore from beginning to the end, continually. Hence, the processing operations should be considered as early as possible, and the controller can not use the "excuse" that it would lead to disproportionally high costs to implement data protection friendly measures at a later stage. More problematic is what to do with an existent system (that pre-dated the coming into force of the GDPR) that cannot easily be changed. Companies and institutions must re-asses their means of processing if the systems they use are outdated, and incompatible to ensure compliance with the GDPR. Because the 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.

(2) Data protection by default

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. The word "default" comes from computer science, and means so much as "the pre-existing or preselected value of a configurable setting". Hence, the "factory presets", in case of electronic products, should conform to the highest data protection standard.

Scope

Although many different kinds of controllers fall under the scope of Article 25(2), it seems to primarily focus on internet-based services, like social media networks, but also operating systems "smart devices" that collect data. Sentence 3 of Article 25(3) seems to particularly refer to social media networks and services alike that offer to provide personal data to an indefinite number of people. It follows from the principle of data protection by default that users of such services can select how big the group of recipients of of their personal data should be, but that the smallest group of people should be the standard. Moreover, it follows that if third party software is used, controllers are obliged to disable features that collect personal data without a basis in Article 6(1) GDPR. Lastly, the principle is also relevant where roles are allocated to staff who have access to data.

Appropriate Technical and Organisational Measures

To ensure the highest "default" data protection standard, the controller must implement appropriate organisational and technical measures. Again, before analysing what these measures entail, it needs to be clarified what “appropriate” means. The EDPS Guidelines on assessing the proportionality of measures that limit the fundamental rights to privacy and to the protection of personal data, described in Article 24 GDPR and Article 32 GDPR, can be used for insight. Although the measures should be implemented to ensure compliance with every data protection principle, and are therefore to be understood the same way as in Article 25(1), the measures in the context of Article 25(2) apply especially to the principle of data minimisation.

Dimensions of the data minimisation obligation

It follows from the second sentence of Article 25(2) that there are different dimensions that result from the obligation of data minimisation: the amount of personal data collected; the extent of their processing; the period of their storage and the accessibility. By default, controllers should not collect a higher amount of data than is necessary for the purpose. Moreover, not every processing operation is necessary to fulfil the purpose. The storage period needs to be objectively justified and if possible, data shall be deleted by default. Lastly, the controller must limit, by default, the amount of persons that have access to the personal data.

Differences with Principle of Data Protection by Design

Although the principles of data protection by design -and by default are similar, there are are considerable differences between them. First, "by design" is broader than "by default, since the focus of the latter principle is on ensuring data minimisation and confidentiality. Moreover, whereas "by design" seems to have a focus on the stages of the development of the product, "by default" focusses more on the end-result: are the settings configured in such a way that data minimisation and confidentiality are ensured? However, although Article 25(1) mentions that the measures apply to both the development and processing stage, this also has to be assumed for Article 25(2), even though the paragraph does not state it explicitly. After all, a factory preset can only be set to the most data protection-friendly default setting when this end-result has already been envisaged during the development process. Hence, as the EDPB stipulates, these concepts (should) reinforce each other. One can consider the following example: a company that produces operating software 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). 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).

(3) Approved Certification Mechanism

The last paragraph of the provision is similar to Article 24(3). 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.

Decisions

→ You can find all related decisions in Category:Article 25 GDPR