Article 25 — Data protection by design and by default

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

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Recital 78: Appropriate Technical and Organisational Measures

Commentary

Article 25 GDPR establishes the idea of data protection "by design and by default”.^[1] Accordingly, controllers must put in place appropriate technical and organisational measures that are designed to implement data protection principles. This means that when programming, designing and conceptualizing systems and programs, as well as when acquiring systems and services from third parties, the controller has to ensure that data protection is taken into account and that the principles of the GDPR are properly integrated into the processing activity.^[2] The first paragraph describes the principles of data protection by design in more detail. The second paragraph expands on this by describing the principles of data protection by default. The third paragraph explains that an approved certification mechanism, pursuant to Article 42, may be used as an element to demonstrate compliance.^[3]

The obligations under Article 25 are directed specifically at the controller (Article 4(7) GDPR) which remains accountable for fulfilling all legal obligations related to data processing. Processors are indirectly affected since, under Article 28(1) GDPR, a controller shall only use processors providing the same standards as foreseen under Article 25 GDPR.^[4] However, ultimately the controller is responsible for the compliance of the processing carried out by their processors and sub-processors.^[5]

Manufacturers or producers of systems are not directly addressed by the GDPR. Nevertheless, as suggested by Recital 78, they are influenced by data protection laws, either indirectly or due to market dynamics. This encourages manufacturers and service providers to offer and introduce products, systems, and services that prioritize data protection.^[6]

EDPB Guidelines: EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default' 20 October 2020 (Version 2.0) (available here).

(1) Data protection by design

The controller must implement technical and organisational measures that are capable of effectively realizing the data protection principles set out in Article 5 GDPR, meeting the requirements of the GDPR and ensuring the protection of the data subject's rights (including Articles 12-22 GDPR). This should already happen when the controller determines the means of the processing, i.e. in the design process. This ensures that appropriate technical and organisational measures are implemented at the beginning of the processing and throughout the processing itself. These obligations must be addressed with practical and effective solutions.^[7] Therefore, the controller should implement measures that systematically guarantee that all current and future processing activities include appropriate technical and organisational measures.^[8]

Taking into account...

Article 25 (1) lists elements that the controller has to take into account when determining the technical and organisational measures of a specific processing operation.

State of the art

In general, this means, that the controller has to be aware of and take into account the latest developments in its field and has to stay up-to-date with technology. The idea is that a controller shall never go below what is commonly considered the appropriate technological standard at a given time. In detail, the interpretation of this criterion can be challenging, requiring appropriate technical expertise and input from experts. Guidelines by supervisory authorities can also be helpful to interpret the current state of the art.^[9] But since the state of the art is a dynamic concept which has to be assessed continuously and in the context of the technological progress, even existing standards or guidelines can only be indicative for the assessment whether respective measures of the controller still suffice.^[10]

"[T]he reference to “state of the art” imposes an obligation on controllers, when determining the appropriate technical and organisational measures, to take account of the current progress in technology that is available in the market. The requirement is for controllers to have knowledge of, and stay up to date on technological advances; how technology can present data protection risks or opportunities to the processing operation; and how to implement and update the measures and safeguards that secure effective implementation of the principles and rights of data subjects taking into account the evolving technological landscape."

EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 19.

The "state of the art" criterion does not exclusively apply to technical measures. Also the organisational measures like data protection and IT-security trainings or policies of the controller have to reflect any developments in the state of the art.^[11]

It is therefore not compliant to simply keep the same technical and organisational measures over a longer period of time without adopting them to the developments in the state of the art.^[12]

Cost of implementation

Regularly the controller has a choice between different technical and organisational measures. When deciding which technical and organisational measures to implement, the controller can take the cost of implementation of those measures into account and is not forced to allocate an excessive amount of resources for one specific measure if there are alternative measures available that are less resource-intensive yet still effective. Such costs include not only costs necessary to develop privacy compliant technologies, but more broadly all business resources allocated to achieve data protection goals (e.g. efforts by individual employees).^[13]

When calculating these costs, all necessary expenses related to the implementation of the measures should be considered, including acquisition and installation costs prior to processing initiation, as well as operational and maintenance costs during the ongoing processing. An economic analysis should be conducted to assess the relationship between costs and risks. The higher the level of risk associated with the data processing, the more economically justifiable it is for the controller to invest in implementing the necessary technical measures. Cost-intensive measures that offer minimal additional risk reduction may not be required.^[14]

However, it is important to stress that the implementation cost should be taken into consideration when incorporating data protection by design, rather than being used as a justification for not implementing it. Whatever measures the controller implements, they have to be effective and ensure that all the requirements of the GDPR are met and the rights of data subjects are protected.^[15]

"The cost element does not require the controller to spend a disproportionate amount of resources when alternative, less resource demanding, yet effective measures exist.

[...]

[T]he chosen measures shall ensure that the processing activity foreseen by the controller does not process personal data in violation of the principles, independent of cost. Controllers should be able to manage the overall costs to be able to effectively implement all of the principles and, consequentially, protect the rights.

EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 24 et seq.

Nature, scope, context and purpose of processing

These criteria have the same meaning as in Article 24(1) and Article 32(1). See therefore the commentary on Article 24 GDPR.

Risks of varying likelihood and severity for rights and freedoms of natural persons posed by the processing

The GDPR imposes the duty to perform a risk assessment in a number of its provisions like in Articles 24, 25, 32 and 35. The risk assessment should always be performed with regard to a given processing activity and is usually performed in connection with all the GDPR provisions demanding a risk assessment. Since the state of the art as well as the specific conditions of a processing activity regularly change, the risk assessment should be performed in regular intervals and when it comes to changes in the processing activity. For detailed remarks see therefore commentary on Article 24 GDPR.

For example: The provider of a newspaper offers high quality news articles against payment. The provider plans to give visitors of its website the alternative option to "pay" for the article by consenting to the processing of their personal data for behavioural advertising. According to the risk assessment foreseen in Article 25(1) GDPR the controller takes into account the particular risks associated with a lack of freely given consent, which constitutes a violation of the lawfulness principle and ends up implementing an additional free version without behavioural advertising^[16] in order to provide an adequate alternative to the consent option.^[17]

At the time of the determination of the means [...] and at the time of processing

Controllers must assess the implementation of appropriate measures "at the time of the determination of the means for processing" and "at the time of the processing itself". Therefore, the controller must already consider this obligation in the design stage of the processing activity - i.e. when it considers how the processing will be conducted and which mechanisms and tools it will use for the processing.^[18] Hence, the privacy by design principle should be considered as early as possible in order to select appropriate processing mechanisms (e.g. software, hardware, processors). This also reduces the controller's risk of having to change these basic components late in the design stage due to to a lack of compliance with data protection principles.^[19]

For example: A bank wants to implement a whistleblower tool for its employees. According to the privacy by design principle set out in Article 25(1) GDPR, the bank, as a controller, has to consider the requirements of the GDPR already during the design stage of the processing activity. Therefore, it has to consider how it can ensure compliance with data protection principles and protect the rights of data subjects (e.g. by choosing a GDPR compliant software by a third party and defining the strictly necessary information collected by whistleblower).

"Article 25(1) of the GDPR requires that the controller must, 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 that are designed to implement data-protection principles in an effective manner and to integrate the necessary safeguards into the processing in order to meet the requirements of that regulation and protect the rights of data subjects.

[I]nasmuch as the operator of an online marketplace, such as the marketplace at issue in the main proceedings, knows or ought to know that, generally, advertisements containing sensitive data in terms of Article 9(1) of the GDPR, are liable to be published by user advertisers on its online marketplace, that operator, as controller in respect of that processing, is obliged, as soon as its service is designed, to implement appropriate technical and organisational measures in order to identify such advertisements before their publication and thus to be in a position to verify whether the sensitive data that they contain are published in compliance with the principles set out in Chapter II of that regulation. Indeed, as is apparent in particular from Article 25(1) of that regulation, the obligation to implement such measures is incumbent on it not only at the time of the processing, but already at the time of the determination of the means of processing and, therefore, even before sensitive data are published on its online marketplace in breach of those principles, that obligation being specifically intended to prevent such breaches."

CJEU - C-492/23 - Russmedia, margin number 89 and 97.

Obviously the obligations also apply throughout the live circle of the processing activity. Therefore, the controller must also consider the privacy by design principle when it considers any later changes in the processing activity.

This can lead to problems for processing activities that were already in place before the GDPR entered into force and that cannot easily be changed. However, Article 25 GDPR also applies to such preexisting systems. Controllers must re-asses their means of processing if the systems they use are outdated and fail to ensure compliance with the GDPR.^[20] Because the state of the art continuously changes, updating systems will be a continuous and necessary practical component of adhering to the privacy by design principle during ongoing processing activities.^[21]

Shall implement appropriate technical and organizational measures

Technical and organisational measures

The "technical and organisational measures" mentioned in this provision are in principle the same measures mentioned in other provisions of the GDPR like Articles 24 and 32. Only the concrete aim of the measures is specified somewhat differently in the various provisions.

Article 25 GDPR specifically mentions pseudonymisation (Article 4(5) GDPR) as a technical and organisational measure. It notes that such measures should be designed (i) to implement data-protection principles, such as (but not limited to) data minimisation (Article 5(1)(c) GDPR), in an effective manner and (ii) to integrate the integrate the necessary safeguards into the processing in order to meet the requirements of the GDPR and protect the rights of data subjects.

For detailed remarks on "technical and organisational measures", see the commentary on Article 24 GDPR.

Appropriate measures

"Appropriate" is a technical or organisational measure that effectively addresses the issues posed by the specific processing and circumstances.

"Being appropriate means that the measures and necessary safeguards should be suited to achieve the intended purpose, i.e. they must implement the data protection principles effectively. The requirement to appropriateness is thus closely related to the requirement of effectiveness."

EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 8, footnotes omitted.

In general, the "appropriateness" of measures chosen by the controller is a point upon which several GDPR provisions touch, most notably - alongside Article 25 - Articles 24 and 32. The EDPS Guidelines on assessing the proportionality of measures that limit the fundamental rights to privacy and to the protection of personal data^[22] can be used as a starting point to gain some insight.

Article 25(1) GDPR mentions pseudonymisation as an example of an appropriate technical and organisational measure. The EDPB Guidelines list other potential suitable measures - always depending on the context and the associated risks:

• storing personal data available in a structured, commonly machine-readable format;

• enabling data subjects to intervene in the processing;

• providing information about the storage of personal data;

• having malware detection systems;

• training employees about basic "cyber hygiene";

• establishing privacy and information security management systems; and

• obligating processors contractually to implement specific data minimisation practices.^[23]

Specifically important for the timely consideration of data protection principles is in the design stage of a processing activity is the implementation of internal policies obliging the controller's employees to take the requirements of the GDPR into account when they start to determine the means for the processing.^[24]

For example: A financial institution requires its product development team to complete a "privacy by design information sheet" during the design phase of new products. The team has to collect specific information regarding the processing in the document and already clarify how the data protection principles and data subject's rights are secured.

Furthermore, in line with the accountability principle stated in Article 5(2) GDPR, the controller should adopt additional measures to demonstrate the effectiveness of their choices.^[25]

Designed to implement data-protection principles in an effective manner

The technical and organisational measures implemented by the controller must be designed to implement data-protection principles in an effective manner. The provision explicitly mentions data minimization (Article 5(1)(c) GDPR) as such a principle but the provision is applicable to all principles listed in Article 5(1) GDPR.^[26]

While this provision does not require the implementation of any specific technical and organisational measure the controller is obliged to find measures that effectively protect and ensure the compliance with the data protection principles. In order to decide if a specific measure is effective (and therefore appropriate) in implementing data protection principles the controller has to consider the context of the specific processing.^[27]

In order to fulfil this obligation effectively the controller has to implement measures to systematically ensure that all current and future processing activities include appropriate technical and organisational measures.^[8]

For example: In order to fulfil its obligation under Article 25(1) GDPR, a controller implements a privacy by design process for every new processing activity and audits existing processing activities each year.

And to integrate the necessary safeguards into the processing

The technical and organisational measures implemented by the controller must additionally be designed to integrate the necessary safeguards into the processing in order to meet the requirements of the GDPR and protect the rights of data subjects.

From the term "safeguards", it cannot be derived that any specific technical and organisational measures have to be integrated. Rather, the terms "safeguards" and "technical and organisational measures" are interchangeable.^[28]

The controller's obligation to implement the necessary safeguards into the processing in order to meet the requirements of the GDPR can be understood as a responsibility to adopt internal policies and measures which ensure that the GDPR's obligations are taken into account whenever any new processing activity is planned or an existing processing activity is subject to any change.^[29]

Specifically, the controller has to integrate safeguards ensuring the protection of the rights of the data subjects. Therefore, the controller should not passively react to requests by data subjects, but should already have considered data subjects' rights and anticipate requests by data subjects in accordance with Chapter III of the GDPR.^[30]

For example: A data broker collects personal data from a vast amount of data. It has to implement technical and organisational measures that ensure that e.g. (i) information is provided to the data subjects in accordance with Article 13 GDPR and Article 14 GDPR and (ii) even a vast amount of access requests can be efficiently answered without undue delay in accordance with Article 12 GDPR and Article 15 GDPR.

(2) Data protection by default

Article 25(2) GDPR requires the controller to implement appropriate technical and organizational measures to ensure that, by default, only personal data necessary for the specific processing purpose are processed. This provision establishes an explicit connection with the principles of data minimization, storage limitation and purpose limitation.

"[T]he term “by default” when processing personal data, refers to making choices regarding configuration values or processing options that are set or prescribed in a processing system, such as a software application, service or device, or a manual processing procedure that affect the amount of personal data collected, the extent of their processing, the period of their storage and their accessibility."

EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 41.

One could argue that this clarification is redundant since the controller is already obliged, under paragraph 1, to adopt appropriate measures to ensure the effective adherence to the data protection principles, including data minimisation (Article 5(1)(c) GDPR). However, although the principles of data protection by design and by default may look similar at first glance, there are considerable differences between them.

First, "by design" is broader than "by default", since the focus of the latter is adherence with the principles of data minimisation, storage, purpose limitation and confidentiality. Whereas the "by design" principle focuses more on the development stages of the processing activity, "by default" is more about the end-result: i.e. ensuring the settings are configured in such a way that data minimisation and confidentiality are ensured.^[31]

Second, the underlying concept of the principle of data protection by default is that the controller implements measures to ensure that each processing activity is configured in a way that per default the available settings ensure that the processing of personal data does not exceed what is necessary for the specific purpose of the processing.^[32] In other words, unless the user decides otherwise, the default settings shall be the most privacy-friendly. This is particularly significant, considering the prevailing tendency to accumulate personal data beyond reasonable necessity, especially in the realm of the Internet and mobile applications.^[33]

For example: A company that produces an operating system for a computer has, inter alia, to consider that a customer might want to change their settings in such a way that they can amend their data protection settings themselves, as follows from Article 25(1) GDPR. However, when this computer is delivered to the customer, the default settings within the software must already be set in such a way that the data protection principles of data minimisation and confidentiality are already ensured, since this follows from Article 25(2) GDPR.

The controller

The addressee of the provision is the controller. See the commentary under paragraph 1 for more details on this point and the commentary on Article 4(7) GDPR for more information on the definition of the controller.

Even though the provision is particularly relevant for the standard settings of software products it should be noted that the manufacturer is not an addressee of the provision.^[34]

Shall implement appropriate technical and organisational measures

To ensure the highest "default" data protection standard, the controller must implement appropriate technical and organisational measures. With regard to the meaning of "appropriate" and "technical and organisational measures" please see to the analysis in paragraph (1) and the commentary on Article 24 GDPR.

In the context of this paragraph, the measures must implement default settings for each processing activity that ensure that only personal data which are necessary for each specific purpose are processed. Therefore, just as it is the case for compliance with the privacy by design principle, the implementation of internal policies can be a suitable measure to ensure that for each processing activity, by default, only necessary personal data are processed.

For example: A controller puts a privacy by default policy in place that obliges its employees to specify (i) the specific purpose of the processing activity as well as (ii) the necessary amount of personal data that is needed for the purpose, (iii) the necessary extent of the processing of that data, (iv) the necessary period for which the data has to be stored and (v) who needs access to that data.

Although measures should be implemented to ensure compliance with every data protection principle (see paragraph 1), the measures in the context of Article 25(2) must be capable to specifically ensure the principles of data minimisation, storage limitation, purpose limitation and confidentiality.^[35]

In contrast to the privacy by design principle, the privacy by default provision of Article 25(2) GDPR does not provide for a proportionality assessment taking into account the the cost of implementation, the nature, scope, context and purposes of processing and the risks posed by the processing for the data subjects. The measures implemented by the controller must therefore ensure privacy-friendly default settings irrespective of these factors.^[36]

Ensuring that by default, only personal data which are necessary for each specific purpose of the processing are processed

The word "default" comes from computer science. It refers to the pre-existing or pre-selected value of a configurable setting. The principle of data protection by default means that a product or service should have the most data protection-friendly settings configured when the product or service is first turned on or used.^[37] Hence, the "factory presets", in case of electronic products, should ensure that the processing is limited to what is strictly necessary in order to achieve the (lawful) purpose of the processing activity.^[38]

"The controller should choose and be accountable for implementing default processing settings and options in a way that only processing that is strictly necessary to achieve the set, lawful purpose is carried out by default. [...] This means that by default, the controller shall not collect more data than is necessary, they shall not process the data collected more than is necessary for their purposes, nor shall they store the data for longer than necessary. The basic requirement is that data protection is built into the processing by default."

EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 42.

In cases where the controller utilizes third-party or off-the-shelf software, it is crucial to conduct an assessment of the product. Any functions within the software that lack a legal basis or are incompatible with the intended purposes of processing must be deactivated or disabled.^[39] Similar considerations extend to the organisational measures, which should be designed to initially handle only the minimum necessary amount of personal data required for the specific operations. This becomes particularly significant when granting access to data to employees with diverse roles and different access necessities.^[40]

It is subject of an ongoing debate whether it is compliant with this provision to force data subjects to make specific choices with regard to data protection settings (mandated choice), since this could potentially be overwhelming to data subjects.^[41]

That obligation applies to....

The amount of personal data collected

Controllers should conduct a sound analysis of the volume, types, categories, and level of detail of personal data that is necessary for their processing activities. It is important to compare the risks arising from the envisaged processing with the risks that may be posed by the collection of smaller amounts or less detailed information about data subjects. Regardless of the specific circumstances, the default settings should not allow for the collection of personal data that is unnecessary for the intended processing purpose. This means that if certain categories of personal data are determined to be unnecessary or if less detailed information is sufficient instead of highly granular data, excessive data shall not be collected in the first place.^[42]

The extent of their processing

Processing activities involving personal data must adhere to the principle of necessity. While multiple processing operations may contribute to a specific purpose, it does not imply that all types and frequencies of processing can be conducted on the data. Controllers should exercise caution to ensure that they do not exceed the boundaries of "compatible purposes" as outlined in Article 6(4) and consider what processing activities would be within the reasonable expectations of data subjects. It should be noted that the fact that some data was obtained by and is available to the controller since it is necessary for a specific purpose does not not justify the unrestricted or excessive processing of that data.^[43]

The period of their storage

The controller is required to restrict the retention period of personal data to what is necessary for the specific purpose of processing. Once the personal data is no longer needed for its intended purpose, it should be either deleted or anonymized by default. The duration of the retention period will vary depending on the particular processing purpose. This obligation is directly connected to the principle of storage limitation stated in Article 5(1)(e) GDPR. By default, the controller should establish systematic procedures for data deletion or anonymization that are integrated into the processing operations.^[44]

Their accessibility

Article 25(2) clarifies that, by default, only the minimum number of individuals within the controller's organization (or indirectly, the processor's organization), should have access to personal data. This entails the adoption of technical and organizational measures that restrict personnel access to databases.^[45] In line with this logic, the latter part of Article 25(2) further clarifies that the data subject should always be consulted before their personal data is made available to an indefinite number of individuals, or in other words, before it is made public (see next point).

Ensuring that data are not made accessible to an indefinite number of natural persons without the data subject's intervention

Article 25(2) GDPR specifies that the privacy by default principle encompasses the controller's obligation to implement technical and organisational measures that ensure that personal data are not made accessible to an indefinite number of natural persons without the individual data subject making a choice to do so (i.e. to make the data publicly available).

Making personal data available to the public (e.g. on the internet) could result to unforeseeable and unintended future data processing. Therefore, the data subject should have an opportunity to make a choice about such a publication.^[46]

"Making personal data available to an indefinite number of persons may result in even further dissemination of the data than initially intended. This is particularly relevant in the context of the Internet and search engines. This means that controllers should by default give data subjects an opportunity to intervene before personal data is made available on the open Internet. This is

particularly important when it comes to children and vulnerable groups."

EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 57.

This provision is specifically directed to social media providers who have the responsibility to implement privacy settings preventing the public availability of user data by default. Of course the controller can give the data subjects the option to change this setting and make their personal data publicly available.^[47]

Even though this provision mentions the intervention of the "individual" it is reasonable to understand this as a reference to the "data subject".^[48]

(3) Approved certification mechanism

A controller has to be able to demonstrate compliance with the principles of privacy by design and by default (Article 5(2) and 24(1) GDPR). The last paragraph of Article 25 offers the controller some guidance on how to demonstrate such compliance (similar to Article 24(3) GDPR). It states that an "approved certification mechanism pursuant to Article 42" may be used as an element to demonstrate compliance with the requirements set out in the first two paragraphs of the provision. Hence, just like in Article 24(3), it follows from the word "element" that such adherence only supports the assumption that the controller is compliant, and does not prove it.^[49]

"Even where a processing operation is awarded a certification in accordance with Article 42, the controller still has the responsibility to continuously monitor and improve compliance with the [Data Protection by Design and by Default]-criteria of Article 25."

EDPB, 'Guidelines 4/2019 on Article 25 Data Protection by Design and by Default', 20 October 2020 (Version 2.0), margin number 91.

Understood. You want only the substantive commentary, not the reproduced statutory text. I'll also make it more analytical, practical, and explanatory rather than simply paraphrasing each paragraph.

Absolutely. For Article 26, the important thing is not to repeat the bare provision but to explain how joint controllership is actually identified, why the concept exists, how it differs from a processor and independent controller, how the CJEU has expanded the concept, what a joint-controller arrangement must contain, and why the arrangement cannot restrict the rights of data subjects.