Article 24 GDPR
Legal Text
1. Taking into account the nature, scope, context and purposes of processing as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons, the controller shall implement appropriate technical and organisational measures to ensure and to be able to demonstrate that processing is performed in accordance with this Regulation. Those measures shall be reviewed and updated where necessary.
2. Where proportionate in relation to processing activities, the measures referred to in paragraph 1 shall include the implementation of appropriate data protection policies by the controller.
3. Adherence to approved codes of conduct as referred to in Article 40 or approved certification mechanisms as referred to in Article 42 may be used as an element by which to demonstrate compliance with the obligations of the controller.
Relevant Recitals
Commentary on Article 24
This provision opens Chapter 4’s Section 1, which is dedicated to the “General obligations” of the controller and processor. It provides an overview of the controller’s essential responsibility as the first addressee for compliance with the provisions of the GDPR.[1] Since it provides an overview, the actual obligations that follow from the controller’s responsibility are described more specifically in other provisions, such as Article 25 GDPR or Article 32 GDPR.[2] However, according to Plath, this does not mean that the provision is merely declaratory: it also establishes directly applicable obligations.[3]
Although the provision speaks of “responsibility”, it imposes accountability on the controller, next to Article 5(2) GDPR.[4] According to Docksey, this principle is one of the GDPR’s most innovative aspects,[5] since meaning has developed from ‘passive’ responsibility to a concept of ‘proactive’ and demonstrable compliance.[6] Hence, the controller’s processing operations must be known (“taking into account”), controlled (through “appropriate technical and organisational measures”) and regularly reviewed (“updated where necessary”), so that controller must do so to “ensure” compliance with the Regulation.
(1) Appropriate Technical and Organisational Measures
The controller must implement effective technical and organisational measures to ensure compliance with the entire GDPR, including respect of data protection principles (Article 5 GDPR), data subject’s rights (amongst others, Articles 12 to 22 GDPR) and controller’s obligations.
The term "measure" must be understood broadly since it refers to all actions that are appropriate in serving the purpose of achieving compliance of the processing with the GDPR.[7] As the provision explains, this can be done through technical and organisational means. Technical measures are measures of which its technical effect lies in the functionality of the technique, for example by securing the access (password protection) or transfer (encryption).[8] Of course, these technical measures would not mean a lot if there were no organisational measures that secure compliance with these technical measures. One can think of the implementation of sampling routines, the duty to log activities, or training of employees by the DPO.[9] Other examples of "measures" are given in Recital 78, which lists pseudonymisation, data minimisation, and "transparency with regard to the functions and processing of personal data". It must be noted, however, that it is not always clear to distinct between technical and organisational measures, since these can overlap. However, as Hartung mentions, this is not really a problem since the GDPR does not differentiate in terms of legal requirements.[10]
To know which measures should be implemented, the controller must select the most appropriate ones among the different options available. Hence, this is an example of a risk-based approach that has been implemented throughout the GDPR. This risk-based approach focuses on two aspects: "likelihood" and "severity". Whereas Article 17 of the Data Protection Directive (DPD) merely mentioned the latter element, the controller must now also consider the likelihood.
As Docksey mentions, whereas the this is not only related to the severity of the risk, but also the likelihood of the risk.
The appropriateness of a measure shall be defined considering the “nature, scope, context and purposes of processing as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons”. However, the provision does not provide clear instructions as to how these elements interact. It follows that EDPB’s position and DPAs’ decisions will play an essential role in defining what was appropriate and what was not.
Demonstrating
Controllers not only have to “ensure” compliance they also have to “demonstrate” it. Since the term “compliance” includes all the GDPR provisions, the burden of proof will cover the very same items.
The burden of proof is not limited to the mere keeping of the typical documents (registry of the processing activities, data protection impact assessment, where required). If the controller has to demonstrate compliance with the GDPR, then many other aspects should be considered.
For instance, Article 5(1)(c) GDPR establishes the data minimisation principle under which processing shall be limited to “what is necessary in relation to the purposes for which they are processed”. Therefore, the controller should demonstrate why specific processing needed a certain amount of information and not any less. Again, if the processing is based on consent, controllers must prove whether the user’s decision was validly obtained and justify every consent requirement.
(2) Data Protection Policies
This paragraph expands on paragraph 1 since it emphasises measures that are primarily oriented towards procedures, rather than result.[11]
(3) Codes of Conduct as Evidence of Compliance
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Decisions
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References
- ↑ Hartung, in Kühling & Buchner, DS-GVO BDSG, Art. 24, para 1 (C.H.Beck 2020).
- ↑ Hartung, in Kühling & Buchner, DS-GVO BDSG, Art. 24, para 11 (C.H.Beck 2020).
- ↑ Hartung, in Kühling & Buchner, DS-GVO BDSG, Art. 24, para 11 (C.H.Beck 2020) referring to Plath, in Plath Art. 24, para 2.
- ↑ Docksey, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 24 GDPR, p. 557 (Oxford University Press 2020).
- ↑ Docksey, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 24 GDPR, p. 557 (Oxford University Press 2020).
- ↑ Docksey, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 24 GDPR, p. 561 (Oxford University Press 2020).
- ↑ Martini, in Paal & Pauly, DS-GVO Art. 24, para 20a (C.H.Beck 2021).
- ↑ Martini, in Paal & Pauly, DS-GVO Art. 24, para 21 (C.H.Beck 2021).
- ↑ Martini, in Paal & Pauly, DS-GVO Art. 24, para 22 (C.H.Beck 2021).
- ↑ Hartung, in Kühling & Buchner, DS-GVO BDSG, Art. 24, para 11 (C.H.Beck 2020) referring to Plath, in Plath Art. 24, para 17.
- ↑ Martini, in Paal & Pauly, DS-GVO Art. 24, para 39 (C.H.Beck 2021).