Article 32 GDPR
|← Article 32 - Security of processing →|
Legal Text[edit | edit source]
1. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, the controller and the processor shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including inter alia as appropriate:
- (a) the pseudonymisation and encryption of personal data;
- (b) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
- (c) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident;
- (d) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.
2. In assessing the appropriate level of security account shall be taken in particular of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to personal data transmitted, stored or otherwise processed.
3. Adherence to an approved code of conduct as referred to in Article 40 or an approved certification mechanism as referred to in Article 42 may be used as an element by which to demonstrate compliance with the requirements set out in paragraph 1 of this Article.
4. The controller and processor shall take steps to ensure that any natural person acting under the authority of the controller or the processor who has access to personal data does not process them except on instructions from the controller, unless he or she is required to do so by Union or Member State law.
Relevant Recitals[edit | edit source]
Commentary[edit | edit source]
Overview[edit | edit source]
As a key principle of data protection, data security was also codified in Article 32 GDPR. For this purpose, the controller and the processor must implement appropriate technical and organizational measures, taking into account the state of the art, the implementation costs and the nature, scope, context and purposes of processing. Consideration must, however, also be given to the varying likelihood and the severity for the rights and freedoms of natural persons. The EUCJ has consequently recognised data security as an integral part of the right to data protection in Article 8 of the Charter of Fundamental Rights of the European Union.
Risk Assessment[edit | edit source]
Article 32 GDPR reaffirms the need for the data controller and data processor to adopt technical and organizational measures to minimize the risk of data breaches, especially with regard to the rights and freedoms of individuals. Article 32 GDPR places an obligation to implement measures that ensure an appropriate level of security.
The first step, therefore, shall be the performance of an assessment that identifies the risks tied to the processing operations. The provision applies to all types of risks although, according to Article 32(2) GDPR, specific attention should be paid to certain categories of risks. Precisely, the “accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to personal data transmitted, stored or otherwise processed”.
Recital 83 GDPR, which seems to confirm this interpretation, also suggests that not all the risks mentioned above are relevant. In fact, the risk should also “lead to physical, material or non-material damage”. It can be argued, therefore, that a potential risk of, say, “destruction” will not be relevant if it is structurally unable to inflict a tangible harm to the data subject.
Technical and Organisational Measures[edit | edit source]
The second step consists of the identification of the security measures that can mitigate the identified risks. The lists of measures that a controller or processor can adopt are various. However, Article 32(1) GDPR lists four types of security measures that are generally deemed 'as appropriate'.
Such a list includes pseudonymisation and encryption of personal data (Article 32(1)(a) GDPR); the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems (Article 32(1)(b) GDPR); the ability to restore the availability and access to personal data in a timely manner in case of an incident (Article 32(1)(c) GDPR) and a process for regularly testing, assessing and evaluating the effectiveness of security measures (Article 32(1)(d) GDPR).
In addition to technical measures, organisational measures should also be implemented. Examples are the distribution of responsibility between controller and processor, as well as the training activities of each person authorised to process personal data, internal policies, disciplinary measures, internal guidelines as well as adherence to codes of conduct or certification mechanisms.
Impact Assessment and Implementation[edit | edit source]
After having identified a list of theoretically applicable measures, controllers and processor must make a choice and implement the measure or measures which can ensure a level of security “appropriate” to the risk.
This indicates that controllers and processors must implement the measures that are able to mitigate (at least) those risks which are the most likely to materialise and those whose impact would be the most severe.
Article 32(1) GDPR provides a (non-exhaustive) list of criteria to be taken into account, namely: the state of the art; the costs of implementation; the nature, scope, context and purposes of the processing; and the risk of varying likelihood and severity for the rights and freedoms of individuals.
Codes of Conduct and Certification Mechanisms[edit | edit source]
In line with the accountability principle, Article 32(3) GDPR stipulates that adherence to codes of conduct or certification mechanisms can be used as an element to demonstrate compliance with the Regulation. Neither of these two requirements shall automatically reduce the liability of the data controller and/or data processor (Article 42(4) GDPR). However, they will undoubtedly be facilitated should they be called upon to prove that they have done everything possible to avoid the violation.
Decisions[edit | edit source]
→ You can find all related decisions in Category:Article 32 GDPR
References[edit | edit source]
- EUCJ, 8 April 2014, Digital Rights Ireland Ltd, C‑293/12 joint with EUCJ, Kärntner Landesregierung, C‑594/12, ECLI:EU:C:2014:238, margin number 29 (available here).
- Burton, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 9 GDPR, p. 636 (Oxford University Press 2020).
- For an analysis of these concept, please check the commentary on Article 33 GDPR.
- Riccio, Scorza, Belisario, GDPR e normativa privacy, p. 299 (Wolters Kluwer 2018).