Article 24 GDPR
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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.
Article 24 opens Section 1 of Chapter 5 of the GDPR, dedicated to the “General obligations” of controller and processor. This provision introduces one of the most innovative aspects of the GDPR as it holds the controller accountable for the processing operations, which must be known (“taking into account”), controlled (through “appropriate technical and organisational measures”) and regularly reviewed (“updated where necessary”). The controller must do so to “ensure” compliance with the Regulation.
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), data subject’s rights (amongst the others, Article 12-22) and controller’s obligations.
To obtain such a result, the controller must study the processing, and select the most appropriate measures among the different options available. 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.
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) 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.
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. These practices can assist the controller in demonstrating compliance.
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