Article 24 GDPR

← Article 24 - Responsibility of the controller →
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 24 - Responsibility of the controller

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

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.

Recital 75: Risks to the Rights and Freedoms of Natural Persons

The risk to the rights and freedoms of natural persons, of varying likelihood and severity, may result from personal data processing which could lead to physical, material or non-material damage, in particular: where the processing may give rise to discrimination, identity theft or fraud, financial loss, damage to the reputation, loss of confidentiality of personal data protected by professional secrecy, unauthorised reversal of pseudonymisation, or any other significant economic or social disadvantage; where data subjects might be deprived of their rights and freedoms or prevented from exercising control over their personal data; where personal data are processed which reveal racial or ethnic origin, political opinions, religion or philosophical beliefs, trade union membership, and the processing of genetic data, data concerning health or data concerning sex life or criminal convictions and offences or related security measures; where personal aspects are evaluated, in particular analysing or predicting aspects concerning performance at work, economic situation, health, personal preferences or interests, reliability or behaviour, location or movements, in order to create or use personal profiles; where personal data of vulnerable natural persons, in particular of children, are processed; or where processing involves a large amount of personal data and affects a large number of data subjects.

Recital 76: Evaluating the Risks to Natural Persons

The likelihood and severity of the risk to the rights and freedoms of the data subject should be determined by reference to the nature, scope, context and purposes of the processing. Risk should be evaluated on the basis of an objective assessment, by which it is established whether data processing operations involve a risk or a high risk.

Recital 77: Guidance on Evaluating Risks

Guidance on the implementation of appropriate measures and on the demonstration of compliance by the controller or the processor, especially as regards the identification of the risk related to the processing, their assessment in terms of origin, nature, likelihood and severity, and the identification of best practices to mitigate the risk, could be provided in particular by means of approved codes of conduct, approved certifications, guidelines provided by the Board or indications provided by a data protection officer. The Board may also issue guidelines on processing operations that are considered to be unlikely to result in a high risk to the rights and freedoms of natural persons and indicate what measures may be sufficient in such cases to address such risk.

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

This provision opens Section 1 of Chapter IV, which is dedicated to the “General obligations” of the controller and processor. It stipulates the the abstract obligation of the controller to ensure and demonstrate GDPR compliance. This provision is therefore closely connected to the numerous more specific obligations of the controller, such as Article 5(2) GDPR, Article 25 GDPR or Article 32 GDPR. This provision assigns a proactive role to the controller who has to ensure compliance with the GDPR at all stages of processing. To archive this goal, the controller uses technical and organisational measures that are appropriate to the risk connected to the processing (risk based approach).

The controller is not only responsible for the actual compliance with the GDPR, it must also be able to demonstrate compliance. The controller can use codes of conduct or approved certification mechanisms as an element of such demonstration.

Article 24 GDPR is the only provision in the section on the general obligations which cannot be directly penalised with a fine under Article 83(4)(a) or Article 83(5) GDPR.

EDPB Guidelines: For this Article there are the Guidelines 07/2020 on the concepts of controller and processor in the GDPR

(1) Appropriate technical and organisational measures

The controller must implement appropriate technical and organisational measures to ensure compliance of its processing activities with the GDPR. But the mere compliance is insufficient – the controller must also be able to demonstrate that the processing is performed in accordance with the GDPR.

Example: It is not sufficient that a controller manages to answer to access requests in accordance with Article 12 GDPR and Article 15 GDPR. The controller must also be able to demonstrate that it implemented appropriate technical and organisational measures that ensure such compliance with the data subject's right to access.

The technical and organisational measures implemented by the controller are subject to change and must be reviewed and updated regularly in order to ensure the appropriateness of those measures.

The controller

This provision addresses the controller (see commentary on Article 4(7) GDPR) as the primary addressee for GDPR compliance. Other entities, such as data processors, are not subject of Article 24 and their responsibility is limited to specific aspects regulated separately. However, even a limited responsibility of a processor does not affect the overall accountability and liability of the controller.

Taking into account...

To decide which technical and organisational measures to implement, the controller must perform a comprehensive assessment of processing activities, analyse potential consequences and causes of harm, and consider the specific criteria and examples provided in the GDPR to effectively evaluate and mitigate risks associated with data processing. The provision lists several elements that the controller must take into account when assessing the risk.

Nature, scope, context and purposes

The controller must consider the nature, scope, context and purposes of the processing.

The nature of the processing refers in particular to the type or processing (e.g. collection, recording, storing, etc.) as well as to the categories of data processed (e.g. whether special categories of personal data are processed).

The scope of the processing refers to the quantity of the data processing resulting from the amount of affected data subjects the amount of processed data, duration and geographical extend of the data processing.

The context of the processing refers to the specific circumstances such as the modalities and technical implementation, the type and method of data collection and the legal basis in accordance with Article 6 GDPR.

The controller also has to consider the purposes of the processing. See the commentary on Article 5(1)(b) GDPR for more details on the purpose.

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

Second, the controller must assess the severity of the risks for the rights and freedoms of natural persons, as well as the likelihood that these materialise.

The likelihood is the statistical probability that a certain risk will materialise in the future. It should be noted that some risks are inherent to processing activities – the likelihood is therefore 100 %.

Example: A controller publishes certain personal data. The loss of confidentiality is a risk that certainly materialises in course of the processing activity.

The severity of the risk is determined by the extent a potential damage would have to the rights and freedoms of a natural person as well as the nature of the damage. [Knyrim Art 24 Rn 21] Recital 75 clarifies that the damage can be physical, material, or immaterial and lists a range of examples of damages, such as discrimination, identity theft, fraud and loss of confidentiality or control.

According to Recital 76 the likelihood and severity of the risk to the rights and freedoms of the data subject should be determined by reference to the nature, scope, context and purposes of the processing. It also states that the risk should be evaluated on the basis of an objective assessment.

Article 24 does not prescribe procedural steps on how to perform this assessment. Therefore, it is left to the controller to use a suitable method. However, regarding the methodology, reference can be made to the risk assessment in course of a privacy impact assessment in accordance with Article 35 GDPR, which a controller has to carry out if a processing activity is likely to result in a high risk for the rights and freedoms of natural persons.

Shall implement appropriate measures to ensure GDPR compliance

The term "measure" must be understood broadly since it refers to all actions that are appropriate to make the processing compliant with the GDPR. As the provision explains, this can be done through technical and organisational means. However, the GDPR does not define what is a technical measure, it merely gives examples, such as securing the access (password protection) or transfer (encryption). Of course, these technical measures would be ineffective if no organisational measures that secure compliance with them are implemented (e.g. data audits, activity logs, internal training of employees by the DPO). 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". In practice, the distinction between technical and organisational measures is not always clear as these can overlap. However, as Hartung observes, this is not really a problem because the GDPR does not differentiate between the two in terms of legal requirements.

And to demonstrate GDPR compliance

Pursuant to Article 24(1) the controller must be able to demonstrate the compliance with the GDPR. This provision therefore widens the accountability obligation stipulated in Article 5(2) GDPR which obliges the controller to be able to demonstrate compliance with the data protection principles set out in Article 5(1) GDPR.

The ability to demonstrate compliance with the GDPR must be ensured by appropriate technical and organisational measures. The comprehensiveness of the necessary evidence must be proportionate to the risk posed by the processing operation. The riskier a processing operation, the more comprehensive the accompanying evidence must be. The controller can use a wide variety of ways in order to demonstrate that it implemented appropriate technical and organisational measures that ensure compliance with the GDPR. In particular, the controller can refer to data protection policies (Article 24(2)) or approved codes of conduct or certification mechanisms (Article 24(3)). Recitals 77 adds EDPB guidelines and indications provided by the data protection officer.

Certain provisions of the GDPR provide for specific obligations to demonstrate compliance (e.g. maintaining a record of processing activities under Article 30(1) GDPR; documenting personal data breaches under Article 33(5) GDPR).

Whether the controller’s obligation to demonstrate compliance, also implies a reversal of the burden of proof when a data subject seeks compensation for damages pursuant to Article 82, is disputed.

Measures must be continuously reviewed and updated

The controller must continuously ensure and demonstrate compliance with the GDPR by consistently reviewing existing measures and updating them.

Beyond the qualifier "where necessary", it is not specified how frequently updates must be carried out. The criterion of necessity does not mean that the controller must only react to concrete changes. Since it is the controller’s responsibility to ensure that their processing operations are compliant at any time, the controller has to review its measures regularly. However, significant changes in the processing activity or the legal environment will certainly trigger the obligation to review the technical and organisational measures.

Example: A controller running an online-shop receives a complaint from a data subject claiming that one of his online-forms violates the principle of data minimization (Article 5(1)(c) GDPR). Such a complaint could trigger a review of the processing activity.

In course of the review the controller must assess if the current technical and organizational measures, are still appropriate and effective to ensure the compliance with the GDPR and to be able to demonstrate the compliance. If not, the controller has to implement additional technical and organizational measures or change the existing ones in order to bring the processing activity in compliance with the GDPR.

Particular attention should be paid to the advice of the data protection officer in accordance with Article 39(1) GDPR, who is tasked with the monitoring of the controller’s compliance with data protection regulations (without decrementing the controller’s responsibility to ensure compliance).  

(2) Data protection policies

Article 24(2) mentions a specific organisational measure, namely the implementation of data protection policies – internal guidelines with binding effect in the controller’s organization. Such policies regularly include concrete procedural instructions and oblige the controller’s employees to act in a specific way to ensure compliance with the GDPR. If the controller appointed a data protection officer, this person is also tasked with the monitoring of the controller’s data protection policies (see Article 39(1)(b) GDPR)

Example: Most controllers have a general data protection policy covering topics like the destruction of sensitive documents, the usage of IT-infrastructure and deletion periods as well as more specific data protection policies like specific internal rules regarding the compliance with data protection in the product development process or the handling of access requests in accordance with Article 15 GDPR.

The implementation of data protection policies is only mandatory, when it is proportionate to the processing activity. In other words, it is not obligatory to implement a data protection policy for all processing activities. However, for larger organisations or controllers of extensive processing activities the implementation of data protection policies is necessary.

Regardless of the existence of an obligation, an implementation of data protection policies is an important tool in order to demonstrate compliance with the GDPR.

(3) Demonstration through codes of conduct and certifications

Article 24(3) provides for the possibility to refer to the adherence to (i) approved codes of conduct (Article 40 GDPR), (ii) approved certification mechanisms (Article 42 GDPR) in order to indicate compliance with the GDPR. , or (iii) guidelines by the EDPB and advice by the data protection officer (Recital 77 GDPR). Nevertheless, it follows from the word "element" that such self-regulation measures only support the assumption that the controller is compliant, but does not prove it.

Example: A credit information agency adheres to approved codes of conduct when implementing deletion periods for certain data categories, and still violates Article 5(1)(a) and Article 6(1) GDPR because the duration of those deletion periods are unjustified.

However, this provision does not limit the possibility to demonstrate compliance via other means (see section on “And to demonstrate GDPR compliance” above).

Decisions

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