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]
|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: Risk Assessment|
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 Risk Assessments|
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.
|Recital 79: Clear Allocation of the Responsibilities|
The protection of the rights and freedoms of data subjects as well as the responsibility and liability of controllers and processors, also in relation to the monitoring by and measures of supervisory authorities, requires a clear allocation of the responsibilities under this Regulation, including where a controller determines the purposes and means of the processing jointly with other controllers or where a processing operation is carried out on behalf of a controller.
|Recital 83: Maintaining Security and Preventing Processing in Infringement|
In order to maintain security and to prevent processing in infringement of this Regulation, the controller or processor should evaluate the risks inherent in the processing and implement measures to mitigate those risks, such as encryption. Those measures should ensure an appropriate level of security, including confidentiality, taking into account the state of the art and the costs of implementation in relation to the risks and the nature of the personal data to be protected. In assessing data security risk, consideration should be given to the risks that are presented by personal data processing, such as accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed which may in particular lead to physical, material or non-material damage.
Commentary[edit | edit source]
Overview[edit | edit source]
As a key principle of data protection, data security was also codified in Article 32. 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 ECJ 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 reaffirms the need for the data controller and data processor to adopt technical and organizational measures to minimize the risk of data breach, especially with regard to the rights and freedoms of individuals. Article 32 places an obligation to implement measures that ensure an appropriate level of security.
The first step, therefore, shall be the permormance 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), 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, 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) lists four types of security measures that are generally deemed 'as appropriate'.
Such a list includes pseudonymisation and encryption of personal data (Article 32(l)(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) 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) 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 (Art. 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.
 ECJ, Judgment of 8. April 2014 in the joint cases Digital Rights Ireland Ltd, C‑293/12 and Kärntner Landesregierung, C‑594/12, ECLI:EU:C:2014:238, par. 29
 Kuner C, The EU General Data Protection Regulation (GDPR): A Commentary, Oxford University Press 2020, pg 636.
 For an analysis of these concept, please check the comment under Article 33 of this Commentary.
 Riccio, Scorza, Belisario, GDPR e normativa privacy – Commentario, Wolters Kluwer 2018, pg. 299.
Decisions[edit | edit source]
→ You can find all related decisions in Category:Article 32 GDPR