Article 24 GDPR: Difference between revisions

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==Commentary==
==Commentary==
This provision opens Section 1 of Chapter IV, which is dedicated to the “''General obligations''” of the controller and processor. It provides an overview of the controller’s responsibilities as the first addressee for compliance with the provisions of the GDPR. The actual obligations that follow from this position are described more specifically in other provisions, such as [[Article 25 GDPR]] or [[Article 32 GDPR]].<ref>''Hartung'', in Kühling, Buchner, DS-GVO BDSG, Article 24, margin number 11 (C.H. Beck 2020, 3rd Edition).</ref> However, according to ''Plath'', this does not mean that the provision is merely declaratory: it also establishes directly applicable obligations.<ref>''Plath,'' in Plath DSGVO BDSG, Article 24 GDPR, margin number 2 (Ottoschmidt 2018, 3rd Edition).</ref> Nevertheless, Article 24 GDPR is the only provision in this section which precludes the imposition of fines under [[Article 83 GDPR|Article 83(4)(a)]] or [[Article 83 GDPR|Article 83(5) GDPR]]. As ''Hartung'' notes, this supports the view that it is intended as a general provision that provides an overview of the controller’s responsibilities.<ref>''Hartung'', in Kühling, Buchner, DS-GVO BDSG, Article 24, margin number 24 (C.H. Beck 2020, 3rd Edition).</ref> Although the provision refers to “''responsibility''”, it builds on Article 5(2) GDPR by imposing accountability on the controller. According to ''Docksey'', this shift from ‘passive’ responsibility to a concept of ‘proactive’ and demonstrable compliance is one of the GDPR’s most innovative aspects.<ref>''Docksey'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 24 GDPR, p. 557 (Oxford University Press 2020).</ref> 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 the controller can “''ensure''” compliance with the Regulation. <blockquote><u>EDPB Guidelines:</u> For this Article there are the [https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-072020-concepts-controller-and-processor-gdpr_en Guidelines 07/2020 on the concepts of controller and processor in the GDPR] </blockquote>
This provision opens Section 1 of Chapter IV, which is dedicated to the “''General obligations''” of the controller and processor. It provides an overview of the controller’s responsibilities as the first addressee for GDPR compliance. The actual obligations that follow from this position are described more specifically in other provisions, such as [[Article 25 GDPR]] or [[Article 32 GDPR]].<ref>''Hartung'', in Kühling, Buchner, DS-GVO BDSG, Article 24, margin number 11 (C.H. Beck 2020, 3rd Edition).</ref> Article 24 GDPR is the only provision in this section which precludes the imposition of fines under [[Article 83 GDPR|Article 83(4)(a)]] or [[Article 83 GDPR|Article 83(5) GDPR]].<ref>However, this does not mean that the provision is merely declaratory: it also establishes directly applicable obligations. ''Plath,'' in Plath DSGVO BDSG, Article 24 GDPR, margin number 2 (Ottoschmidt 2018, 3rd Edition).</ref> As ''Hartung'' notes, this supports the view that it is intended as a general provision that provides an overview of the controller’s responsibilities.<ref>''Hartung'', in Kühling, Buchner, DS-GVO BDSG, Article 24, margin number 24 (C.H. Beck 2020, 3rd Edition).</ref> By imposing "''accountability''" on the controller, the provision assigns a ‘proactive’ role to the controller.<ref>''Docksey'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 24 GDPR, p. 557 (Oxford University Press 2020).</ref> 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 the controller can “''ensure''” compliance with the Regulation. <blockquote><u>EDPB Guidelines:</u> For this Article there are the [https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-072020-concepts-controller-and-processor-gdpr_en Guidelines 07/2020 on the concepts of controller and processor in the GDPR] </blockquote>


===(1) Appropriate Technical and Organisational Measures===
===(1) Appropriate technical and organisational measures===
The controller must implement effective technical and organisational measures to ensure compliance with the entire GDPR, including data protection principles ([[Article 5 GDPR]]), data subject rights (amongst others, [[Article 12 GDPR|Articles 12]] to [[Article 22 GDPR|22 GDPR]]) and controllers’ obligations.
The controller must implement effective technical and organisational measures to ensure compliance with the entire GDPR, including data protection principles ([[Article 5 GDPR]]), data subject rights (amongst others, [[Article 12 GDPR|Articles 12]] to [[Article 22 GDPR|22 GDPR]]) and controllers’ obligations.


==== Measures ====
==== The controller ====
The regulation addresses the controller. Other entities, such as data processors, are not mentioned in Article 24 and their responsibility is usually limited to specific aspects regulated separately. However, this limited responsibility does not affect the overall accountability and liability of the controller in external relationships which remains separate, regardless of whether decision-making authority over the purposes and methods of processing is equally or unequally distributed.<ref>''Petri'', in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 24 GDPR, margin number 9 (C.H. Beck 2019).</ref>
 
==== Shall implement appropriate technical and organisational measures to ensure 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,<ref>''Lang'', in Taeger, Gabel, DSGVO BDSG, Article 24, margin numbers 23-24 (C.H. Beck 2022, 4th Edition).</ref> 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).<ref>''Martini'', in Paal, Pauly, DS-GVO, Article 24, margin numbers 21-22 (C.H. Beck 2021, 3rd Edition).</ref> 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.<ref>''Hartung'', in Kühling, Buchner, DS-GVO BDSG, Article 24, margin number 17 (C.H. Beck 2020, 3rd Edition).</ref>  
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,<ref>''Lang'', in Taeger, Gabel, DSGVO BDSG, Article 24, margin numbers 23-24 (C.H. Beck 2022, 4th Edition).</ref> 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).<ref>''Martini'', in Paal, Pauly, DS-GVO, Article 24, margin numbers 21-22 (C.H. Beck 2021, 3rd Edition).</ref> 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.<ref>''Hartung'', in Kühling, Buchner, DS-GVO BDSG, Article 24, margin number 17 (C.H. Beck 2020, 3rd Edition).</ref>  


==== Risk-based Approach ====
===== Taking into account... =====
To decide which measures to implement, the controller must perform a risk assessment and select the most appropriate ones. The provision lists several elements that the controller must take into account when assessing the risk. First, it must consider the ''nature'' of the processing (manual or automated), the ''scope'' of the processing (amount of data subjects affected, amount of data collected, bulk or individual processing, sensitivity of the data), the ''context'' of the processing (how many parties are involved, which systems are used, etc.), and the ''purposes'' of the processing.<ref>''Hartung'', in Kühling, Buchner, DS-GVO BDSG, Article 24, margin number 14 (C.H. Beck 2020, 3rd Edition).</ref> 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. This obligation to consider the likelihood of the materialisation expands on Article 17 of the Data Protection Directive (DPD), which merely mentioned the consideration of risks.<ref>''Docksey'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 24 GDPR, p. 564 (Oxford University Press 2020).</ref>  
To decide which measures to implement, the controller must perform a risk assessment and select the most appropriate ones. The provision lists several elements that the controller must take into account when assessing the risk.
Recital 75 gives useful guidance to determine what this risk actually entails. Besides clarifying that the damage can be physical, material, or immaterial, it lists a range of examples of damages, such as discrimination, identity theft or fraud. However, it also mentions "''loss of confidentiality of personal data protected by professional secrecy''". Moreover, it is important to note that, although this is not mentioned in the provision, it follows from Article 52(1) of the Charter of Fundamental Rights that the principle of proportionality plays an important role in determining whether a measure is appropriate. Thus, the cost-effectiveness of a measure can play an important part in the assessment.<span lang="EN-GB">This
 
provision opens Section 1 of Chapter IV, which is dedicated to the “''General
First, it must consider the ''nature'' of the processing (manual or automated), the ''scope'' of the processing (amount of data subjects affected, amount of data collected, bulk or individual processing, sensitivity of the data), the ''context'' of the processing (how many parties are involved, which systems are used, etc.), and the ''purposes'' of the processing.<ref>''Hartung'', in Kühling, Buchner, DS-GVO BDSG, Article 24, margin number 14 (C.H. Beck 2020, 3rd Edition).</ref>  
obligations''of the controller and processor. It provides an overview of
 
the controller’s responsibilities as the first addressee for compliance with
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. This obligation to consider the likelihood of the materialisation expands on Article 17 of the Data Protection Directive (DPD), which merely mentioned the consideration of risks.<ref>''Docksey'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 24 GDPR, p. 564 (Oxford University Press 2020).</ref> Recital 75 gives useful guidance to determine what this risk actually entails. Besides clarifying that the damage can be physical, material, or immaterial, it lists a range of examples of damages, such as discrimination, identity theft or fraud. However, it also mentions "''loss of confidentiality of personal data protected by professional secrecy''". Moreover, it is important to note that, although this is not mentioned in the provision, it follows from Article 52(1) of the Charter of Fundamental Rights that the principle of proportionality plays an important role in determining whether a measure is appropriate. Thus, the cost-effectiveness of a measure can play an important part in the assessment. For instance, processing that involves the publication of data can be considered risky. The scale of processing, particularly when it involves large volumes of personal data or profiling, can introduce specific risks if those data are interconnected with other available somwhere else, and even if individual data points seem insignificant. Special circumstances may arise when processing sensitive data, retaining data for extended periods, or transferring data to different contexts. Risky purposes are often associated with social dependency relationships and processing linked to fundamental rights, among other factors.<ref>''Petri'', in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 24 GDPR, margin number 12 (C.H. Beck 2019).</ref> Additionally, there may be causes of further harm resulting from subsequent data processing that extend beyond the infringement of personal rights. These causes can contribute to increased risks, although they may not be specifically defined. Examples include limitations on data subject rights not provided by law, processing of sensitive data as defined in Articles 9 and 10, creation of individual profiles, recording of individuals requiring special protection (e.g., children), or unique processing activities. These factors can be utilized to influence decisions, engage in discriminatory practices, differentiate treatment, or deny access to services. High-risk processing operations are further detailed in Recitals 89 and 91, particularly highlighting the use of new technologies.<ref>''Petri'', in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 24 GDPR, margin number 13-14 (C.H. Beck 2019).</ref>
the provisions of the GDPR.</span><ref>''Martini'', in Paal, Pauly, DS-GVO, Article 24, margin number 24 (C.H. Beck 2021, 3rd Edition).</ref> Lastly, although GDPR prescribes that the controller must determine the risk, it does not prescribe procedural steps on how to perform this assessment. Hence, this assessment is left to the controller. In this regard, ''Martini'' points to Article 35(4) GDPR, which states that “''The supervisory au''<span lang="EN-GB">This
 
provision opens Section 1 of Chapter IV, which is dedicated to the “''General
Lastly, although GDPR prescribes that the controller must determine the risk, it does not prescribe procedural steps on how to perform this assessment. Hence, this assessment is left to the controller. In this regard, ''Martini'' points to Article 35(4) GDPR, which states that “''The supervisory authority shall establish and make public a list of the kind of processing operations which are subject to the requirement for a data protection impact assessment''”, and notes that such a list can provide guidance to controllers since it shows which processing operations constitute a high risk. However, he also stipulates that “''informative content is limited to whether there is a high or normal risk and whether a data protection impact assessment is therefore indicated (Art. 35(1)) and the supervisory authority must be consulted (Art. 36(1)) before the controller takes concrete measures''”. Hence, such a list is merely an indication of risk and does not provide the controller with certainty as to which measures are suitable and effective in a specific case.<ref>''Martini'', in Paal, Pauly, DS-GVO, Article 24, margin number 36-36b (C.H. Beck 2021, 3rd Edition).</ref> Moreover, the EDPB could also provide useful guidance. ''Lang'' notes that the Board ''may'' issue guidelines pursuant to Article 70(1)(e) GDPR, and that this applies in particular to the determination of risk that is related to processing (recital 77 GDPR).<ref>''Lang'', in Taeger, Gabel, DSGVO BDSG, Article 24, margin number 62 (C.H. Beck 2022, 4th Edition).</ref>
obligations''” of the controller and processor. It provides an overview of
 
the controller’s responsibilities as the first addressee for compliance with
In summary, the controller must conduct a comprehensive assessment of processing activities, analyze 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 provisions of the GDPR.</span>''thority shall establish and make public a list of the kind of processing operations which are subject to the requirement for a data protection impact assessment''”, and notes that such a list can provide guidance to controllers since it shows which processing operations constitute a high risk. However, he also stipulates that “''informative content is limited to whether there is a high or normal risk and whether a data protection impact assessment is therefore indicated (Art. 35(1)) and the supervisory authority must be consulted (Art. 36(1)) before the controller takes concrete measures''”. Hence, such a list is merely an indication of risk and does not provide the controller with certainty as to which measures are suitable and effective in a specific case.<ref>''Martini'', in Paal, Pauly, DS-GVO, Article 24, margin number 36-36b (C.H. Beck 2021, 3rd Edition).</ref> Moreover, the EDPB could also provide useful guidance. ''Lang'' notes that the Board ''may'' issue guidelines pursuant to Article 70(1)(e) GDPR, and that this applies in particular to the determination of risk that is related to processing (recital 77 GDPR).<ref>''Lang'', in Taeger, Gabel, DSGVO BDSG, Article 24, margin number 62 (C.H. Beck 2022, 4th Edition).</ref>
 
==== And to demonstrate compliance ====
Controllers not only have to ensure compliance, but have to demonstrate it through evidence. The comprehensiveness of this evidence must be proportionate to the risk posed by the processing operation. The more risky a processing operation, the more comprehensive the accompanying evidence must be.<ref>''Martini'', in Paal, Pauly, DS-GVO, Article 24, margin number 25a (C.H. Beck 2021, 3rd Edition).</ref> Conversely, where the risk is lower a witness statement rather than physical documentation might be sufficient. Like other elements of the provision, this requirement is elaborated on in other GDPR articles (e.g. maintaining a record of processing activities under [[Article 30 GDPR|Article 30(1)]] GDPR; documenting personal data breaches under [[Article 33 GDPR|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 uncertain. Some authors, such as Bergt and Quaas, argue in favour of this point of view,<ref>For example, Bergt, in Kühling, Buchner, DS-GVO BDSG, Article 24, margin numbers 46, 48 (C.H. Beck 2020, 3rd Edition); ''Quaas'', in: Wolff, Brink, BeckOK Datenschutzrecht, Article 82 GDPR, margin number 16 (C.H. Beck 2021, 39th Edition).</ref> as does the Regional Labor Court of Baden-Württemberg.<ref>LAG Baden-Württemberg, 25 February 2021, 17 Sa 37/20, margin number 61 (available [http://lrbw.juris.de/cgi-bin/laender_rechtsprechung/document.py?Gericht=bw&nr=34234 here]).</ref> Others, however, disagree with this interpretation. According to ''Martini,'' the controller’s obligation to demonstrate compliance does not necessarily imply that the burden of proof lies with it where a claim is brought under civil law. If a data subject asserts a claim for damages under [[Article 82 GDPR]], it is still up to them to prove the violation of data protection law, damage, and causality.<ref>''Martini'', in Paal, Pauly, DS-GVO, Article 24, margin number 25a (C.H. Beck 2021, 3rd Edition). See also ''Moos, Schefzig,'' in Taeger, Gabel, DSGVO BDSG, Article 24, margin number 62 (C.H. Beck 2022, 4th Edition).</ref>  


==== Demonstrating Compliance and Updating Data Processing Measures ====
==== These measures must be continuously reviewed and updated ====
Controllers not only have to ensure compliance, but have to demonstrate it through evidence. The comprehensiveness of this evidence must be proportionate to the risk posed by the processing operation. The more risky a processing operation, the more comprehensive the accompanying evidence must be.<ref>''Martini'', in Paal, Pauly, DS-GVO, Article 24, margin number 25a (C.H. Beck 2021, 3rd Edition).</ref> Conversely, where the risk is lower a witness statement rather than physical documentation might be sufficient. Like other elements of the provision, this requirement is elaborated on in other GDPR articles (e.g. maintaining a record of processing activities under [[Article 30 GDPR|Article 30(1)]] GDPR; documenting personal data breaches under [[Article 33 GDPR|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 uncertain. Some authors, such as Bergt and Quaas, argue in favour of this point of view,<ref>For example, Bergt, in Kühling, Buchner, DS-GVO BDSG, Article 24, margin numbers 46, 48 (C.H. Beck 2020, 3rd Edition); ''Quaas'', in: Wolff, Brink, BeckOK Datenschutzrecht, Article 82 GDPR, margin number 16 (C.H. Beck 2021, 39th Edition).</ref> as does the Regional Labor Court of Baden-Württemberg.<ref>LAG Baden-Württemberg, 25 February 2021, 17 Sa 37/20, margin number 61 (available [http://lrbw.juris.de/cgi-bin/laender_rechtsprechung/document.py?Gericht=bw&nr=34234 here]).</ref> Others, however, disagree with this interpretation. According to ''Martini,'' the controller’s obligation to demonstrate compliance does not necessarily imply that the burden of proof lies with it where a claim is brought under civil law. If a data subject asserts a claim for damages under [[Article 82 GDPR]], it is still up to them to prove the violation of data protection law, damage, and causality.<ref>''Martini'', in Paal, Pauly, DS-GVO, Article 24, margin number 25a (C.H. Beck 2021, 3rd Edition). See also ''Moos, Schefzig,'' in Taeger, Gabel, DSGVO BDSG, Article 24, margin number 62 (C.H. Beck 2022, 4th Edition).</ref> The controller must continuously be able to demonstrate compliance, where necessary by reviewing existing measures and updating them. This requirement is closely related to the controller's obligations laid down in [[Article 32 GDPR|Article 32(1)(d) GDPR]]. Beyond the qualifier "''where necessary''", it is not specified how frequently updates must be carried out. Again, it is the controller’s responsibility to ensure that their processing operations are still compliant.<ref>''Martini'', in Paal, Pauly, DS-GVO, Article 24, margin numbers 37a-38 (C.H. Beck 2021, 3rd Edition).</ref>
The controller must continuously be able to demonstrate compliance by reviewing existing measures and updating them. This requirement is closely related to the controller's obligations laid down in [[Article 32 GDPR|Article 32(1)(d) GDPR]]. Beyond the qualifier "''where necessary''", it is not specified how frequently updates must be carried out. Again, it is the controller’s responsibility to ensure that their processing operations are currently compliant.<ref>''Martini'', in Paal, Pauly, DS-GVO, Article 24, margin numbers 37a-38 (C.H. Beck 2021, 3rd Edition).</ref>
=== (2) Data Protection Policies ===
=== (2) Data protection policies ===
Although ''Hartung'' claims that this paragraph is obscure,<ref>''Hartung'', in Kühling, Buchner, DS-GVO BDSG, Article 24, margin number 21 (C.H. Beck 2020, 3rd Edition).</ref> ''Martini'' argues it simply expands on Article 24(1) GDPR by specifying the conditions under which the technical and organisational measures must also include data protection measures. By singling these out, ''Martini'' contends that they constitute specific measures within the "''general''" organisational measures, and that paragraph 2 simply refers to procedural measures. These policies are thus not merely legal requirements, but concrete procedural instructions to follow to avoid any violation of the GDPR. The instructions that should follow from such policies are linked to [[Article 39 GDPR|Article 39(1)(b) GDPR]], which states that the DPO’s duty to monitor compliance with the data protection policies. Again, the principle of proportionality plays a big role. A large company carrying out many different processing operations should have more comprehensive and specific policies than a small company with few processing operations.<ref>''Martini'', in Paal, Pauly, DS-GVO, Article 24, margin numbers 39-42 (C.H. Beck 2021, 3rd Edition).</ref>  
Although ''Hartung'' claims that this paragraph is obscure,<ref>''Hartung'', in Kühling, Buchner, DS-GVO BDSG, Article 24, margin number 21 (C.H. Beck 2020, 3rd Edition).</ref> ''Martini'' argues it simply expands on Article 24(1) GDPR by specifying the conditions under which the technical and organisational measures must also include data protection measures. These policies are thus not merely legal requirements, but concrete procedural instructions a controller or its staff should follow to avoid violations of the GDPR. The instructions are linked to [[Article 39 GDPR|Article 39(1)(b) GDPR]], which states that the DPO’s duty to monitor compliance with the data protection policies. The principle of proportionality ("''Where proportionate"'') plays an important role in this case. A large company carrying out many different processing operations should have more comprehensive and specific policies than a small company with few processing operations.<ref>''Martini'', in Paal, Pauly, DS-GVO, Article 24, margin numbers 39-42 (C.H. Beck 2021, 3rd Edition).</ref><blockquote><u>Example</u>: XXX</blockquote>


=== (3) Self-Regulation Measures as Evidence of Compliance ===
=== (3) Self-regulation measures as evidence of compliance ===
Article 24(3) provides the controller with more certainty regarding the question whether it is sufficiently able to demonstrate compliance with its obligations. The controller can show that it adhered to (i) approved codes of conduct ([[Article 40 GDPR]]), (ii) approved certification mechanisms ([[Article 42 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.<ref>''Hartung'', in Kühling, Buchner, DS-GVO BDSG, Article 24, margin number 23 (C.H. Beck 2020, 3rd Edition).</ref>   
Article 24(3) provides the controller with more certainty regarding the question whether it is sufficiently able to demonstrate compliance with its obligations. The controller can show that it adhered to (i) approved codes of conduct ([[Article 40 GDPR]]), (ii) approved certification mechanisms ([[Article 42 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.<ref>''Hartung'', in Kühling, Buchner, DS-GVO BDSG, Article 24, margin number 23 (C.H. Beck 2020, 3rd Edition).</ref>   
==Decisions==
==Decisions==

Revision as of 11:24, 19 May 2023

Article 24 - Responsibility of the controller
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Chapter 10: Delegated and implementing acts

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 provides an overview of the controller’s responsibilities as the first addressee for GDPR compliance. The actual obligations that follow from this position are described more specifically in other provisions, such as Article 25 GDPR or Article 32 GDPR.[1] Article 24 GDPR is the only provision in this section which precludes the imposition of fines under Article 83(4)(a) or Article 83(5) GDPR.[2] As Hartung notes, this supports the view that it is intended as a general provision that provides an overview of the controller’s responsibilities.[3] By imposing "accountability" on the controller, the provision assigns a ‘proactive’ role to the controller.[4] 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 the controller can “ensure” compliance with the Regulation.

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 effective technical and organisational measures to ensure compliance with the entire GDPR, including data protection principles (Article 5 GDPR), data subject rights (amongst others, Articles 12 to 22 GDPR) and controllers’ obligations.

The controller

The regulation addresses the controller. Other entities, such as data processors, are not mentioned in Article 24 and their responsibility is usually limited to specific aspects regulated separately. However, this limited responsibility does not affect the overall accountability and liability of the controller in external relationships which remains separate, regardless of whether decision-making authority over the purposes and methods of processing is equally or unequally distributed.[5]

Shall implement appropriate technical and organisational measures to ensure 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,[6] 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).[7] 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.[8]

Taking into account...

To decide which measures to implement, the controller must perform a risk assessment and select the most appropriate ones. The provision lists several elements that the controller must take into account when assessing the risk.

First, it must consider the nature of the processing (manual or automated), the scope of the processing (amount of data subjects affected, amount of data collected, bulk or individual processing, sensitivity of the data), the context of the processing (how many parties are involved, which systems are used, etc.), and the purposes of the processing.[9]

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. This obligation to consider the likelihood of the materialisation expands on Article 17 of the Data Protection Directive (DPD), which merely mentioned the consideration of risks.[10] Recital 75 gives useful guidance to determine what this risk actually entails. Besides clarifying that the damage can be physical, material, or immaterial, it lists a range of examples of damages, such as discrimination, identity theft or fraud. However, it also mentions "loss of confidentiality of personal data protected by professional secrecy". Moreover, it is important to note that, although this is not mentioned in the provision, it follows from Article 52(1) of the Charter of Fundamental Rights that the principle of proportionality plays an important role in determining whether a measure is appropriate. Thus, the cost-effectiveness of a measure can play an important part in the assessment. For instance, processing that involves the publication of data can be considered risky. The scale of processing, particularly when it involves large volumes of personal data or profiling, can introduce specific risks if those data are interconnected with other available somwhere else, and even if individual data points seem insignificant. Special circumstances may arise when processing sensitive data, retaining data for extended periods, or transferring data to different contexts. Risky purposes are often associated with social dependency relationships and processing linked to fundamental rights, among other factors.[11] Additionally, there may be causes of further harm resulting from subsequent data processing that extend beyond the infringement of personal rights. These causes can contribute to increased risks, although they may not be specifically defined. Examples include limitations on data subject rights not provided by law, processing of sensitive data as defined in Articles 9 and 10, creation of individual profiles, recording of individuals requiring special protection (e.g., children), or unique processing activities. These factors can be utilized to influence decisions, engage in discriminatory practices, differentiate treatment, or deny access to services. High-risk processing operations are further detailed in Recitals 89 and 91, particularly highlighting the use of new technologies.[12]

Lastly, although GDPR prescribes that the controller must determine the risk, it does not prescribe procedural steps on how to perform this assessment. Hence, this assessment is left to the controller. In this regard, Martini points to Article 35(4) GDPR, which states that “The supervisory authority shall establish and make public a list of the kind of processing operations which are subject to the requirement for a data protection impact assessment”, and notes that such a list can provide guidance to controllers since it shows which processing operations constitute a high risk. However, he also stipulates that “informative content is limited to whether there is a high or normal risk and whether a data protection impact assessment is therefore indicated (Art. 35(1)) and the supervisory authority must be consulted (Art. 36(1)) before the controller takes concrete measures”. Hence, such a list is merely an indication of risk and does not provide the controller with certainty as to which measures are suitable and effective in a specific case.[13] Moreover, the EDPB could also provide useful guidance. Lang notes that the Board may issue guidelines pursuant to Article 70(1)(e) GDPR, and that this applies in particular to the determination of risk that is related to processing (recital 77 GDPR).[14]

In summary, the controller must conduct a comprehensive assessment of processing activities, analyze 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.

And to demonstrate compliance

Controllers not only have to ensure compliance, but have to demonstrate it through evidence. The comprehensiveness of this evidence must be proportionate to the risk posed by the processing operation. The more risky a processing operation, the more comprehensive the accompanying evidence must be.[15] Conversely, where the risk is lower a witness statement rather than physical documentation might be sufficient. Like other elements of the provision, this requirement is elaborated on in other GDPR articles (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 uncertain. Some authors, such as Bergt and Quaas, argue in favour of this point of view,[16] as does the Regional Labor Court of Baden-Württemberg.[17] Others, however, disagree with this interpretation. According to Martini, the controller’s obligation to demonstrate compliance does not necessarily imply that the burden of proof lies with it where a claim is brought under civil law. If a data subject asserts a claim for damages under Article 82 GDPR, it is still up to them to prove the violation of data protection law, damage, and causality.[18]

These measures must be continuously reviewed and updated

The controller must continuously be able to demonstrate compliance by reviewing existing measures and updating them. This requirement is closely related to the controller's obligations laid down in Article 32(1)(d) GDPR. Beyond the qualifier "where necessary", it is not specified how frequently updates must be carried out. Again, it is the controller’s responsibility to ensure that their processing operations are currently compliant.[19]

(2) Data protection policies

Although Hartung claims that this paragraph is obscure,[20] Martini argues it simply expands on Article 24(1) GDPR by specifying the conditions under which the technical and organisational measures must also include data protection measures. These policies are thus not merely legal requirements, but concrete procedural instructions a controller or its staff should follow to avoid violations of the GDPR. The instructions are linked to Article 39(1)(b) GDPR, which states that the DPO’s duty to monitor compliance with the data protection policies. The principle of proportionality ("Where proportionate") plays an important role in this case. A large company carrying out many different processing operations should have more comprehensive and specific policies than a small company with few processing operations.[21]

Example: XXX

(3) Self-regulation measures as evidence of compliance

Article 24(3) provides the controller with more certainty regarding the question whether it is sufficiently able to demonstrate compliance with its obligations. The controller can show that it adhered to (i) approved codes of conduct (Article 40 GDPR), (ii) approved certification mechanisms (Article 42 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.[22]

Decisions

→ You can find all related decisions in Category:Article 24 GDPR

References

  1. Hartung, in Kühling, Buchner, DS-GVO BDSG, Article 24, margin number 11 (C.H. Beck 2020, 3rd Edition).
  2. However, this does not mean that the provision is merely declaratory: it also establishes directly applicable obligations. Plath, in Plath DSGVO BDSG, Article 24 GDPR, margin number 2 (Ottoschmidt 2018, 3rd Edition).
  3. Hartung, in Kühling, Buchner, DS-GVO BDSG, Article 24, margin number 24 (C.H. Beck 2020, 3rd Edition).
  4. Docksey, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 24 GDPR, p. 557 (Oxford University Press 2020).
  5. Petri, in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 24 GDPR, margin number 9 (C.H. Beck 2019).
  6. Lang, in Taeger, Gabel, DSGVO BDSG, Article 24, margin numbers 23-24 (C.H. Beck 2022, 4th Edition).
  7. Martini, in Paal, Pauly, DS-GVO, Article 24, margin numbers 21-22 (C.H. Beck 2021, 3rd Edition).
  8. Hartung, in Kühling, Buchner, DS-GVO BDSG, Article 24, margin number 17 (C.H. Beck 2020, 3rd Edition).
  9. Hartung, in Kühling, Buchner, DS-GVO BDSG, Article 24, margin number 14 (C.H. Beck 2020, 3rd Edition).
  10. Docksey, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 24 GDPR, p. 564 (Oxford University Press 2020).
  11. Petri, in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 24 GDPR, margin number 12 (C.H. Beck 2019).
  12. Petri, in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 24 GDPR, margin number 13-14 (C.H. Beck 2019).
  13. Martini, in Paal, Pauly, DS-GVO, Article 24, margin number 36-36b (C.H. Beck 2021, 3rd Edition).
  14. Lang, in Taeger, Gabel, DSGVO BDSG, Article 24, margin number 62 (C.H. Beck 2022, 4th Edition).
  15. Martini, in Paal, Pauly, DS-GVO, Article 24, margin number 25a (C.H. Beck 2021, 3rd Edition).
  16. For example, Bergt, in Kühling, Buchner, DS-GVO BDSG, Article 24, margin numbers 46, 48 (C.H. Beck 2020, 3rd Edition); Quaas, in: Wolff, Brink, BeckOK Datenschutzrecht, Article 82 GDPR, margin number 16 (C.H. Beck 2021, 39th Edition).
  17. LAG Baden-Württemberg, 25 February 2021, 17 Sa 37/20, margin number 61 (available here).
  18. Martini, in Paal, Pauly, DS-GVO, Article 24, margin number 25a (C.H. Beck 2021, 3rd Edition). See also Moos, Schefzig, in Taeger, Gabel, DSGVO BDSG, Article 24, margin number 62 (C.H. Beck 2022, 4th Edition).
  19. Martini, in Paal, Pauly, DS-GVO, Article 24, margin numbers 37a-38 (C.H. Beck 2021, 3rd Edition).
  20. Hartung, in Kühling, Buchner, DS-GVO BDSG, Article 24, margin number 21 (C.H. Beck 2020, 3rd Edition).
  21. Martini, in Paal, Pauly, DS-GVO, Article 24, margin numbers 39-42 (C.H. Beck 2021, 3rd Edition).
  22. Hartung, in Kühling, Buchner, DS-GVO BDSG, Article 24, margin number 23 (C.H. Beck 2020, 3rd Edition).