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 on Article 25

Privacy by design and default was originally conceptualized in the 1990s by the Canadian Information and Privacy Commissioner of Ontario. According to them, data protection must be thought of ex ante in order to be effective. 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.

Article 25 GDPR aims to implement the data protection principles of Article 5 GDPR and to protect the rights of the data subjects. The approach should be proactive. Accordingly, privacy by design requires that developers and controllers embrace a culture of responsibility and systematically indicate processes which could infringe the GDPR.

(1) Controller Obligations

Article 25 GDPR addresses only the controller, and not producers of technical products, services or systems, as they do not decide on the concrete purposes and means of processing. However, Recital 78 GDPR “encourages” producers to take into account the right to data protection so as to enable controllers and processors to fulfill their data protection obligations. Although they are not directly obliged, the invisible hand of demand and supply should favor producers who deliver products that adhere to the principles of data protection by design and default.

Data Protection by Design

To have data processing which follows the principle of data protection by design, a controller needs to have a data strategy in place. A data strategy may consist of data guidelines, documentation, monitoring and the evaluation of measures.

The GDPR does not contain concrete examples of data protection by design. However, the Spanish Data Protection Authority has published a useful guide with practical examples regarding a strategy for data collection and processing.

An important part of Article 25 GDPR is the so-called “privacy engineering." Tactics for privacy engineering are needed in each step of the software design pattern and in the final PETS (Privacy Enhancing technologies). [10]

The design and development of the system needs a privacy verification and validation process, which consists of integration of the system, proof, evaluations, and continuous maintenance. [11]

Privacy by design must also correspond to the following criterion:

State of the art technology

Article 25 GDPR also refers to technical and organizational measures regarding processing. 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.

Costs of implementation

According to the EDPB Guidelines 4/2019 on Article 25, the “incapacity to bear the costs is no excuse for non-compliance with the GDPR”[12]. These “business costs” need to take into account not only the implementation costs, but also the costs of maintaining compliance. [13]

Nature, scope, context and purpose of processing

The nature of processing is “the inherent characteristics of the processing”[14]; the scope concerns the “size and range of processing” [15]; the context “relates to the circumstances of the processing, which may influence the expectations of the data subject”; and the purpose “pertains to the aims of the processing”[16].

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

The GDPR foresees a risk based approach. In order to assess these risks, the EDPB Guideline 4/2019 refers to the “EDPB Guidelines on Data Protection Impact Assessments (DPIA), which can be used to help determine risk.

Time of determination of the means

The determination of the means of data processing “ranges from the abstract to the concrete detailed design elements of the processing, such as the architecture, procedures, protocols, layout and appearance”[17]. The controller has to assess the appropriate measures and safeguards in order to effectively implement the obligations arising out of the GDPR.

More problematic is what to do with an existent system (which predates the GDPR coming into force in 2018) that cannot easily be changed. Outdated systems incompatible with the GDPR require that companies and institutions reassess their means of processing. 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. [18]

Time of the processing

During the processing operation, regular re-assessments have to take place in order to verify and maintain GDPR compliance. [19]

Necessary safeguards

On a technical level there need to be safeguards on processing to guarantee the rights of data subjects. For example, according to Article 20, the controller needs to be able to produce a document listing processing activities carried out with regard to each data subject.

(2) Data Protection by Default

Art. 25 GDPR can result in a violation of the GDPR only if it is violated in connection with other GDPR principles. [20] Article 25 (2) GDPR is lex specialis in relation to Article 25 (1) GDPR,. Article 25 (2) GDPR states that only the personal data which is necessary for each specific purpose shall be processed, while Article 25 (1) GDPR regulates general privacy design obligations. [21]

By default

“A ‘default’, as commonly defined in computer science, refers to the pre-existing or preselected value of a configurable setting that is assigned to a software application, computer program or device. Such settings are also called “presets” or “factory presets”, especially for electronic devices.” [22] It follows that if third party software is used, controllers are obliged to disable features that collect personal data without a basis in Art. 6 (1) GDPR. [23] Defaults are also relevant where roles are allocated to staff who have access to data. [24] Finally, the storage period needs to be objectively justified and if possible, data shall be deleted by default.[25]

Appropriate technical and organizational measures

Before analyzing technical and organizational measures, 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[26], described in Art. 24 GDPR and 32 GDPR, can be used for insight. Technical measures[27] and organizational measures that implement data protection principles[28] are also named as examples in some commentaries.

Above all, controllers have to demonstrate that they have implemented measures to be effective.

Certification mechanism

A certification mechanism could be the certification described in Article 42, but this remains debated.[29]

[10] https://www.aepd.es/sites/default/files/2019-11/guia-privacidad-desde-diseno.pdf , p. 16: “...the use of appropriate technological measures is an essential complement to legal means and  should be  an  integral part  in  any efforts  to  achieve a  sufficient  level of  privacy  protection..." (https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52007DC0228&from=EN , p.3).

[11] https://www.aepd.es/sites/default/files/2019-11/guia-privacidad-desde-diseno.pdf , p. 15.

[12] EDPB Guidelines 4/2019 on Article 25 Data Protection by Design and by Default, adopted on 13 November 2019, Version 1.0, para 24.

[13] EDPB Guidelines 4/2019 on Article 25 Data Protection by Design and by Default, adopted on 13 November 2019, Version 1.0, para 23 f.

[14] EDPB Guidelines 4/2019 on Article 25 Data Protection by Design and by Default, adopted on 13 November 2019, Version 1.0, para 27.

[15] EDPB Guidelines 4/2019 on Article 25 Data Protection by Design and by Default, adopted on 13 November 2019, Version 1.0, para 27.

[16] EDPB Guidelines 4/2019 on Article 25 Data Protection by Design and by Default, adopted on 13 November 2019, Version 1.0, para 27.

[17] EDPB Guidelines 4/2019 on Article 25 Data Protection by Design and by Default, adopted on 13 November 2019, Version 1.0, para 33.

[18] Nolte/Werkmeister in Gola, DS-GVO, Kommentar, 2nd edition, 2018, Art. 25 para 14.

[19] EDPB Guidelines 4/2019 on Article 25 Data Protection by Design and by Default, adopted on 13 November 2019, Version 1.0, para 37.

[20] Nolte/Werkmeister in Gola, DS-GVO, Kommentar, 2nd edition, 2018, Art. 25 para 3.

[21] Nolte/Werkmeister in Gola, DS-GVO, Kommentar, 2nd edition, 2018, Art. 25 para 8.

[22] EDPB Guidelines 4/2019 on Article 25 Data Protection by Design and by Default, adopted on 13 November 2019, Version 1.0, para 39.

[23] EDPB Guidelines 4/2019 on Article 25 Data Protection by Design and by Default, adopted on 13 November 2019, Version 1.0, para 41.

[24] EDPB Guidelines 4/2019 on Article 25 Data Protection by Design and by Default, adopted on 13 November 2019, Version 1.0, para 43.

[25] EDPB Guidelines 4/2019 on Article 25 Data Protection by Design and by Default, adopted on 13 November 2019, Version 1.0, para 52.

[26] EDPS Guidelines on assessing the proportionality of measures that limit the fundamental rights to privacy and to the protection of personal data: https://edps.europa.eu/sites/edp/files/publication/19-02-25_proportionality_guidelines_en.pdf accessed on 3 September 2020.

[27] Nolte/Werkmeister in Gola, DS-GVO, Kommentar, 2nd edition, 2018, Art. 25 para 16: (1) pseudonymization (Article 4 nr. 5), (2) encryption, (3) access controls, (4) anonymization, (5) aggregation, (6) transparency on functions and processing, (7) control of processing via dashboards, (8) purpose principle.

[28] Nolte/Werkmeister in Gola, DS-GVO, Kommentar, 2nd edition, 2018, Art. 25 para 17: (1) training, (2) internal checks/audits, (3) interdisciplinary project teams, (4) ethic committees for complex assessments (Article 5 (1) (a) GDPR, (5) role and access concepts (Article 5 (1)(c) GDPR, (6) deletion concepts (Article 5 (1) (e) GDPR, (7) voluntary DPIAS (Article 35, 5 (2) GDPR).

[29] Nolte/Werkmeister in Gola, DS-GVO, Kommentar, 2nd edition, 2018, Art. 25 para 32.

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[S1]Very good

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