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 sets out all the guiding principles to be observed when processing personal data: lawfulness, fairness and transparency; purpose limitation; data minimisation; accuracy; storage limitation; integrity and confidentiality; and accountability. Other principles are further articulated and affirmed in different parts of the Regulation. For example, the transparency principle underlies Article 13 on which information to provide before the processing. The integrity and confidentiality principles are confirmed and estalished by Article 32 on security. The accountability principle finds its roots in Articles 24 and 25 GDPR.

(1) Principles

The principles specified by Article 5 GDPR are the main "bottleneck" for the legality of any processing operation - together with the requirement to have a legal basis under Article 6 to 10 GDPR. Any controller or processor must comply with all elements of Article 5 GDPR.[However, the data processing principles can be restricted by Union or Member State law under the conditions set forth in Article 23 GDPR.]

(a) Lawfulness, Fairness and Transparency

Lawful

In order to be “lawful”, processing should comply with Article 6 to 10 GDPR (Article 6 is headed “Lawfulness of processing”) and its requirement to base any processing operation on at least one of the six legal bases it exhaustively lists. However, lawfulness is not limited to compliance with Article 6. Indeed, 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”. Thus, any processing that violates either the GDPR or any national provision would render the processing of data illegal.

Fair

Fairness, is an overall requirement of the GDPR., Concepts like “Fairness” are  inherently vague, but may serve as an interpretive tool for situation that may not be in violation of the letter of the law, but clearly not “fair”. Indeed, it is a highly contextual question whether a certain processing operation can be considered as "fair". It is for these reasons that the recent EDPB Guidelines on data protection by design and by default are particularly welcome. As de Terwangne and Bygrave have correctly pointed out, the "guidelines […]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 these guidelines, the EDPB provides a non-exhaustive list of certain elements of fairness which should always be respected while processing personal data. The list is particularly detailed and examples range from providing the data subject with a high level of autonomy in controlling the processing to the right to fair algorithms and human intervention. Other important elements of fairness are officially recognised, 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. The imbalance of power between the controller and data subject often existing in certain intrusive profiling and processing operations seems connected to these principles.

Fairness can be especially relevant in problematic business practices, when controllers try to manipulate data subjects. This happens, for example, when a controller implements tools, such as a cookie banner, which does not provide the users with effective privacy choices (“Accept all cookies” button with no possibility to reject them) or otherwise adopts subtle psychological tricks to obtain the user consent (for instance, if the “Accept” button is displayed in a bright green and the “Refuse” one is placed in a light grey colour at the bottom of the banner). The EDPB clarifies that, in order for the processing to be “fair”, 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.

Further, certain guidance on fairness may also be drawn from Recital 42 which highlights that “[i]n accordance with Council Directive 93/13/EEC a declaration of consent pre-formulated by the controller should be provided in an intelligible and easily accessible form, using clear and plain language and it should not contain unfair terms”. The Unfair Contract Terms Directive aims to protect consumers against unfair clauses included in pre-formulated contracts. The Directive applies to “all contracts concluded between sellers or suppliers and consumers” and declares that a contractual clause “shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.”

From this angle, not only the terms and conditions between controller and data subject, but also the privacy policies pursuant to Articles 13 and 14 GDPR, especially if the processing is based on the legal basis of the contract pursuant to Article 6(1)(b) GDPR, as well as, more generally, all communications between controller and data subject (Recital 42), must be inspired by criteria of good contractual faith and must not generate an imbalance between the parties to the relationship.

Transparent

In general terms, the transparency principle requires that the 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". The transparency principle is closely linked, among the others, to Articles 12(1), 13, 14, 15 19 and 22(3) GDPR. These articles clarify that the information provided to the data subject must be timely, clear and detailed (Article 12 GDPR), provided both before the processing takes place (Articles 13 and 14 GDPR) and after the operations have begun (Article 15 GDPR).

The information in question has essentially two purposes. On the one hand, in application of the principle of foreseeability provided for by EU law, allows the data subject to direct its choices. For example, on the basis of the privacy policy ex Article 13 GDPR, the data subject can decide not to use a certain service. On the other hand, it allows the data subject to verify the fairness of the processing and possibly exercise further rights under the GDPR. For example, following a request for access under Article 15 GDPR, the data subject may decide to exercise its right of rectification or objection to processing for a certain purpose. [S4]

(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. Many other provisions of the GDPR refer back to the purpose of the processing activity. Just to name a few, Article 4(7) defines the controller as the natural and legal person which, alone or jointly with others, determines the “purpose” of the processing. Article 5(1)(b) GDPR itself stipulates that personal data shall be collected only for specified, explicit and legitimate “purposes”. Article 5(1)(d) determines the time data may be kept by referring to the purpose, Article 6(1)(a) GDPR allows consent for one or more “specific purposes”. This makes the proper definition of purposes a crucial step for compliance with the GDPR. Example: A data subject may share highly personal data in a medical context to get the best treatment, but may not agree that the same information is shared for the purpose of medical advertisement.

Specific

Because the purpose of processing operations is meant to limit them to a specific, pre-defined, aim, it cannot be overly broad. Purposes that are too broad would undermine the protections that the purpose limitation principle tries to establish. Broad descriptions like "improving the user experience", "marketing", "research" or "IT security" are not sufficiently defined. For example, in its Guidelines on video surveillance, the EDPB clarified that 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”. While a purpose may not be too broad, there is no limitation as to how specific a purpose may be. The exact level of specificity is not objectively defined in the GDPR. In many cases it is possible to split broad purposes into multiple, more specific purposes.

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 stated purpose must be legal[MS5]. This qualification includes laws beyond the 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. Failure to comply with the compatibility requirement set forth in Article 5(1)(b) of the GDPR renders the processing unlawful.

Example: a doctor may not suddenly use their patient's health data for marketing purposes, as this would be a "secondary use" that goes beyond the original purpose.

The above is true except for three types of cases. Indeed, the compatibility requirement does not need to be met if the further processing is (i) authorized by the data subject by giving 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 principle of purpose limitation 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.

In a recent decision, the CJEU had to provide some guidance on how to assess whether a certain processing (in that case, a video surveillance system) could be considered ‘necessary’ for the purposes of the legitimate interests pursued by the controller. The Court held that the the necessity of a processing operation must be examined in conjunction with the data minimisation principle which restricts the controller's options to those "adequate, relevant and not excessive in relation to the purposes for which they are collected". In conclusion, the Court clarified that the controller must, amongst other things, examine "whether it is sufficient that the video surveillance operates only at night or outside normal working hours, and block or obscure the images taken in areas where surveillance is unnecessary".

Example: XXX

(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-powered processing and machine-learning systems. Indeed, value judgements 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 on which types of intervention are possible. For example, Article 16 GDPR establishes the right of the data subject to obtain the integration of incomplete data. Article 17 allows the erasure of the data if certain conditions are met, 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. However, in these cases 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 imposes a time 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). Storage periods should therefore be defined internally before the processing begins.

Example: XXX

Deletion or Anonymisation

Data can be deleted or anonymised by controllers. The latter means that any link between the data and the relevant person must be removed. Controllers have complied with Article 5(1)(e) once the data does not relate to an identifiable person. The GDPR imposes an active duty on the controller to delete data. The 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 requires that the controller implements deletion practices or automatic deletion systems. The time by which any deletion has to be executed 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 retain data. In other cases, the deadline depends on other factual elements (e.g. 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)(e) in favour 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 research and the preservation of the collective memory. However, in order for the exception to apply,  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 the illegitimate processing of their personal data but also as a result of the loss of data. For example, if a hospital loses the personal data of a patient, they may get an incorrect treatment. The controller must also 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 data against unauthorised access and thus against unauthorised processing. The controller must therefore also implement technical and organisational measures to ensure that personal data is not falsely disclosed, hacked or lost. This includes that unauthorised persons neither have access to the data nor to the devices on which they are processed (Recital 39). The requirements for data security are further defined in Article 32 GDPR.

(2) Accountability

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. In addition to being responsible, the controller also has to be able to demonstrate compliance with the law. However, 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 carrying it out. In most cases, written documentation will be used to demonstrate compliance. If applicable, a record of processing actives (see Article 30 GDPR) is also typically sufficient.

Decisions

→ You can find all related decisions in Category:Article 5 GDPR