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Article 25 GDPR

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Article 25 - Data protection by design and by default
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Chapter 10: Delegated and implementing acts

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 90s by the Canadian Information and Privacy Commissioner of Ontario.[1] According to them, data protection must be thought of ex ante in order to be effective. The controller needs to define the privacy requirements that need to be taken into account while engineering, and define what the default settings of the final product should look like.

Article 25 GDPR aims to implement the data protection principles of Article 5 GDPR and to protect the rights of the data subjects. [2] The approach should be proactive.[3] Therefore, a culture of compromise and responsibility should be introduced and responsibilities attributed as well as indicators introduced to trigger processes and practices which could infringe the GDPR. [4]

(1) Controller Obligations

Article 25 GDPR addresses only the controller, and not producers of technical products, services or systems, as they are not deciding on the concrete purposes and means of processing. [5] However, recital 78 “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 are delivering products that adhere to the principles of data protection by design and default.

Data Protection by Design

To have a 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.[6]

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[7] and processing.[8]

An important part of Article 25 GDPR is the so-called “privacy engineering” which splits up into different steps, i.e. privacy strategies.[9] Tactics 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 the integration of the system, proof and evaluations, and continuous maintenance. This is the integration and proof of the project. [11]

Privacy by design must also correspond to the following criterion:

State of the art

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 follow up on them, in order to maintain 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 risks 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 as a help for determining the risk.

Time of determination of the means

The determination of the means of data processing is located in an early phase of planning a new processing activity, i.e. it “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.

However, problematic is the point in time, when there is already a whole system existent that cannot easily be changed. This might the issue in practical terms, as the GDPR came into force only in 2018. Therefore, many companies and institutions need to reassess their means of processing. In the end, the privacy by design principle needs to be observed anyhow during the ongoing processing activities, due to the fact that the state of the art changes continuously.[18]

Time of the processing

During the processing operation, regular re-assessments have to take place in order to continue to be compliant. [19]

Necessary safeguards

Processes on technical level in order to guarantee rights for data subjects. For example, under Article 20, document assessment process which measures have been taken and why.

Art. 25 II GDPR – Data Protection by Default

Art. 25 GDPR leads only to a violation of the GDPR in case it is not adhered to in connection with other GDPR principles. [20] Article 25 (2) GDPR is lex specialis in relation to Article 25 (1) GDPR, as Article 25 (2) GDPR concerns the data subject who should be able to decide on his or her own what is processed, Article 25 (1) GDPR regulates only general obligations which leaves some room for discretion. [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, features that collect personal data which cannot be based on Art. 6 (1) GDPR, controllers are obliged to disable them. [23] “By default” comes also into play, when roles are allocated to staff who has 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 the technical and organizational measures, it needs to be clarified what “appropriate” means.

In order to assess what are appropriate technical and organizational measures, the EDPS Guidelines on assessing the proportionality of measures that limit the fundamental rights to privacy and to the protection of personal data[26] can be used, this has already been described in Art. 24 GDPR and 32 GDPR.

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 Article 42, but it only makes communication with institutions easier.[29]


[1] Nolte/Werkmeister in Gola, DS-GVO, Kommentar, 2nd edition, 2018, Art. 25 para 1.

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

[3] https://www.aepd.es/sites/default/files/2019-11/guia-privacidad-desde-diseno.pdf , p. 7

[4] https://www.aepd.es/sites/default/files/2019-11/guia-privacidad-desde-diseno.pdf , p. 7

[5] Nolte/Werkmeister in Gola, DS-GVO, Kommentar, 2nd edition, 2018, Art. 25 para 11.

[6] Nolte/Werkmeister in Gola, DS-GVO, Kommentar, 2nd edition, 2018, Art. 25 para 18 ff.8.

[7] https://www.aepd.es/sites/default/files/2019-11/guia-privacidad-desde-diseno.pdf, p. 24:

These practical examples consist out of (1) Minimisation: Limit the needed data to the maximum needed (selection, exclusion, cutting of and delete by means of anonymization, pseudonymisation, bloc possibilities to connect data with each other), (2) Hiding: Measures that prevent personal data to be public or known (Restrict access possibilities, disassociate and aggregate credential-based attributes, mixing data or encrypt them), (3) Separating: Separate data in different containers, isolate data or distribute them by means of anonymous blacklists, homorphic encryption, physical and logical separation, (4) Abstraction: by leaving out details to the highest extent possible (summarizing, grouping and disturbing with aggregation in time, K-anonymity, obfuscation of measurements by noise aggregation, dynamic location granularity).

[8] https://www.aepd.es/sites/default/files/2019-11/guia-privacidad-desde-diseno.pdf, p. 25:

These practical examples consist out of: (1) Information of data subjects on the processing and its conditions via simple explanation and notifications (also: notification of data breaches,  dynamic visualization of privacy policies,  privacy icons and processing alerts), (2) Control – Giving data subjects control over their personal data by consent, alert, choice, actualization, reiterations (panels to choose preferences, active presence transmission, selection of credentials, informed consent), (3) Compliance by respect and boost compliance with obligations imposed by current legislation and own privacy policies (definitions, maintenance and defense, evaluation of DPIAs, access control, management of obligations, compliance with policies), (4) Demonstration – show that processing is respecting privacy by registering, audit and information.

[9] https://www.aepd.es/sites/default/files/2019-11/guia-privacidad-desde-diseno.pdf , p. 17 et seqq.: E.g. disconnecting information from each other – minimize, abstract, spate, occult; control – comply, show; transparency – inform).

[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.


[S1]Very good

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