Article 5 GDPR
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- 1 Legal Text
- 2 Relevant Recitals
- 3 Commentary
- 3.1 (1) Principles
- 3.1.1 (a) Lawfulness, fairness and transparency
- 3.1.2 (b) Purpose limitation
- 3.1.3 (c) Data minimisation
- 3.1.4 (d) Accuracy
- 3.1.5 (e) Storage limitation
- 3.1.6 (f) Integrity and confidentiality
- 3.2 (2) Accountability
- 3.1 (1) Principles
- 4 Decisions
- 5 References
Legal Text[edit | edit source]
1. Personal data shall be:
- (a) processed lawfully, fairly and in a transparent manner in relation to the data subject (‘lawfulness, fairness and transparency’);
- (b) collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes shall, in accordance with Article 89(1), not be considered to be incompatible with the initial purposes (‘purpose limitation’);
- (c) adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed (‘data minimisation’);
- (d) accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay (‘accuracy’);
- (e) kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed; personal data may be stored for longer periods insofar as the personal data will be processed solely for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article 89(1) subject to implementation of the appropriate technical and organisational measures required by this Regulation in order to safeguard the rights and freedoms of the data subject (‘storage limitation’);
- (f) processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures (‘integrity and confidentiality’).;
2. The controller shall be responsible for, and be able to demonstrate compliance with, paragraph 1 (‘accountability’).
Relevant Recitals[edit | edit source]
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Commentary[edit | edit source]
(1) Principles[edit | edit source]
The principles of Article 5 are (together with the need for a legal basis in Article 6) the "bottleneck" for the legality of any processing operation.
The data subject cannot "waive" these principles, as compliance with these principles is required by law. Any controller must comply with all elements of Article 5.
The principles are written in a "tech neural" way and are meant to apply independent of technological change. Accordingly, the principles can be traced back to the first data protection laws in the 70ies and 80ies.
(a) Lawfulness, fairness and transparency[edit | edit source]
Lawful[edit | edit source]
In a narrow understanding of the lawfulness requirement, it is understood to be a mere reference to Article 6(1) and its requirement to base any processing operation on at least one of the six legal bases it exhaustively lists.
In a broader understanding of the lawfulness requirement, any processing that violates the GDPR or any national provision would render the processing of data illegal. For example, this would include the lack of information under Articles 13 or 14.
Fairness[edit | edit source]
The fairness element is an overall requirement that is inherently vague. What is fair and what is not highly depends on the context. Deceptive forms of processing are clearly "unfair". In CJEU - C-201/14 - Bara, the CJEU held that secret processing can be unfair. In practice, this element allows the flexibility to prohibit processing operations that violate the societal perception of overall fairness.
Transparent[edit | edit source]
The transparency principle shall ensure the that data subject is fully aware of the processing of any personal data. In practice, other Articles of the GDPR (for example Article 13, 14 or 15) ensure the concrete implementation of this principle.
(b) Purpose limitation[edit | edit source]
The purpose of any processing operation is the "backbone" of the GDPR. It defines the scope of any processing operation. One can think of the purpose as the river banks of any legal data flow. Many articles, requirements, and principles refer to the purpose to determine the legality of a specific processing operation.
The principle of purpose limitation shall ensure that controllers do not engage in "secondary use" ("further processing") of personal data.
- Example: A doctor may not suddenly use their patient's health data for marketing purposes (secondary use).
Power and time to define the purpose[edit | edit source]
The controller has every freedom to choose one or more legal purpose for one or more processing operations. The controller may, however, not change the purpose when the data is already processed (exceptions, see Article 6(4)). A controller should therefore choose any purpose wisely.
Specific[edit | edit source]
Because the purpose is meant to limit processing operations to a specific, pre-defined, aim, the purpose cannot be overly broad. Broad but meaningless purposes like "improving the user experience", "marketing", "research" or "IT security" are not sufficient if they are not further defined.
Explicit[edit | edit source]
The purpose may not only be defined internally, but must be explicitly stated.
Legitimate[edit | edit source]
The use of personal data for the purpose must be legal. This may also include laws beyond GDPR and national data protection laws (like consumer or worker protection laws).
Further Processing[edit | edit source]
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(c) Data minimisation[edit | edit source]
The principle of data minimisation is closely related to the purpose. Processing of personal data that is not necessary to achieve the purpose is per se illegal. A controller must review each step of a processing operation and also each data element towards the necessity to achieve the purpose.
- Example: An online shop may not ask for more personal details than what is necessary to deliver the product.
(d) Accuracy[edit | edit source]
Accuracy[edit | edit source]
All data that is processed by the controller must be objectively correct.
Duty to keep data accurate[edit | edit source]
Personal data must be kept accurate insofar as being objectively correct for the purpose of the processing operation. In certain cases, the purpose of a processing operation is to keep certain records. In such cases, personal data would become inaccurate if they would be changed later. What is objectively accurate therefore depends on the purpose.
- Example: A public protocol is meant to record an incident of a certain day. If elements of the protocol are inaccurate, they must be corrected. At the same time, the age of the persons may not be changed every time a person turns a year older.
Duty to erase or rectify[edit | edit source]
The controller has a duty to actively erase or rectify inaccurate personal data.
(e) Storage limitation[edit | edit source]
The principle of storage limitation ensures a temporary limit on any processing operation. Once all purposes of a processing operation are fulfilled, the processing operation must stop. The principle of storage limitation is an addition to the general principle of purpose limitation.
Deletion or anonymization[edit | edit source]
The data can be deleted or anonymized, which means that any link between the data and the relevant person must be removed. Once the data does not relate to an identifiable person, Article 5(1)(e) is complied with.
Duty to delete data[edit | edit source]
GDPR imposes an active duty on the controller to delete data. A controller may not wait for an action by the data subject (e.g. under Article 17 GDPR) but must proactively delete information. In practice, the principle required that the controller implements deletion routines or automatic deletion systems.
Deadlines[edit | edit source]
The time of any deletion depends on the purpose. In many cases there are fixed legal deadlines, like record keeping duties or the statute of limitations that determine the need to keep data. In other cases the deletion depends on other factual elements (for example when a customer cancels a contract) that make continuous processing irrelevant for the purpose.
Archiving, scientific, historical and statistical purposes[edit | edit source]
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(f) Integrity and confidentiality[edit | edit source]
GDPR requires technical and organizational measures to ensure that data is neither lost nor destroyed.
Integrity[edit | edit source]
A data subject may not only be harmed by processing of personal data but also from loss of data. If a hospital, for example, loses personal data of a patient, the patient may get wrong treatment. The controller must ensure that data is not falsely deleted or altered. Threats to the integrity of personal data may be coming from the controller, third parties or from an accident.
Confidentiality[edit | edit source]
The controller must also take technical and organizations measures that personal data is not falsely disclosed, hacked or lost. The requirements for data security are further defined in Article 32 GDPR.
→ See Article 32 GDPR
(2) Accountability[edit | edit source]
Responsibility[edit | edit source]
The first part of Article 5(2) highlights that the controller is responsible for complying with Article 5(1) as well as with all other relevant provisions of the GDPR. More detailed provisions about the responsibilities of the controller can be found throughout the GDPR, e.g. Article 24 GDPR.
Burden of proof[edit | edit source]
In addition to being responsible, the controller also has to be able to demonstrate compliance with the law. The provision does not further specify how a controller has to demonstrate compliance, as this is highly dependent on the processing operation and the type of organization.
In most cases, written documentation will be used to demonstrate compliance. If applicable, a record of processing actives (see Article 30 GDPR) is a typical means to demonstrate compliance.
Decisions[edit | edit source]
→ You can find all related decisions in Category:Article 5 GDPR
References[edit | edit source]
- Article 29 Working Party, Opinion 3/2013, WP 203