12. GDPR – Rights and Obligations
Outline of the chapter
This chapter introduces the main rights that data subjects have with regards to the processing of personal data and the obligations established under the General Data Protection Regulation for controllers and processors.
The main topics discussed are:
- Individual rights of data subjects (12.2)
- Obligations for the lawful processing of data (12.3)
(12.1) Revision: Legal bases
The following questions are based on the knowledge that you acquired in the previous chapter.
(12.2) Individual rights of data subjects
In the previous chapter we learned about the principles that must be followed when processing personal data. We learned about the lawful grund for processing personal data as well as about the roles of controllers and processors. In order to ensure that the data protection principles are not mere ideals but mandatory rules which must be adhered to, the European legislator has introduced a set of rights for data subjects and obligations for controller and processor. The aim of these rights and obligations is to ensure that data processing is done in compliance with the legal rules.
The rights of the data subject are regulated in chapter III GDPR.
(12.2.1) Right to be informed
A pre-condition for exercising any rights is to be informed about the processing of personal data. Hence, the GDPR starts with the data subject right to be informed. The exercise of this right is clearly linked with the principle of lawfulness, fairness and transparency introduced in article 5(1)(a) GDPR.
In the information society, data can be directly collected from the data subject, or they can be acquired differently. The most obvious example of the later is the collection of data available online. To ensure fair and transparent processing, the GDPR differentiates between these two different ways with regards to when the data subject should be informed.
On the one hand, Article 13 GDPR lays down the rules applicable when the information about the data subject has been collected from the data subject.
Article 13 GDPR – Information to be provided where personal data are collected from the data subject
1. Where personal data relating to a data subject are collected from the data subject, the controller shall, at the time when personal data are obtained, provide the data subject with all of the following information:
a) the identity and the contact details of the controller and, where applicable, of the controller’s representative;
b) the contact details of the data protection officer, where applicable;
c) the purposes of the processing for which the personal data are intended as well as the legal basis for the processing;
d) where the processing is based on point (f) of Article 6(1), the legitimate interests pursued by the controller or by a third party;
e) the recipients or categories of recipients of the personal data, if any;
f) where applicable, the fact that the controller intends to transfer personal data to a third country or international organisation and the existence or absence of an adequacy decision by the Commission, or in the case of transfers referred to in Article 46 or 47, or the second subparagraph of Article 49(1), reference to the appropriate or suitable safeguards and the means by which to obtain a copy of them or where they have been made available.
2. In addition to the information referred to in paragraph 1, the controller shall, at the time when personal data are obtained, provide the data subject with the following further information necessary to ensure fair and transparent processing […]
On the other hand, Article 14 GDPR regulates the situation in which information about the data subject has not been obtained from the data subject. Thus, via alternative routes and channels.
Article 14 GDPR – Information to be provided where personal data have not been obtained from the data subject
1. Where personal data have not been obtained from the data subject, the controller shall provide the data subject with the following information:
a) the identity and the contact details of the controller and, where applicable, of the controller’s representative;
b) the contact details of the data protection officer, where applicable;
c) the purposes of the processing for which the personal data are intended as well as the legal basis for the processing;
d) the categories of personal data concerned;
e) the recipients or categories of recipients of the personal data, if any;
f) where applicable, that the controller intends to transfer personal data to a recipient in a third country or international organisation and the existence or absence of an adequacy decision by the Commission, or in the case of transfers referred to in Article 46 or 47, or the second subparagraph of Article 49(1), reference to the appropriate or suitable safeguards and the means to obtain a copy of them or where they have been made available.
2. In addition to the information referred to in paragraph 1, the controller shall provide the data subject with the following information necessary to ensure fair and transparent processing in respect of the data subject:
a) the period for which the personal data will be stored, or if that is not possible, the criteria used to determine that period;
b) where the processing is based on point (f) of Article 6(1), the legitimate interests pursued by the controller or by a third party;
c) the existence of the right to request from the controller access to and rectification or erasure of personal data or restriction of processing concerning the data subject and to object to processing as well as the right to data portability;
d) where processing is based on point (a) of Article 6(1) or point (a) of Article 9(2), the existence of the right to withdraw consent at any time, without affecting the lawfulness of processing based on consent before its withdrawal;
e) the right to lodge a complaint with a supervisory authority;
f) from which source the personal data originate, and if applicable, whether it came from publicly accessible sources;
g) the existence of automated decision-making, including profiling, referred to in Article 22(1) and (4) and, at least in those cases, meaningful information about the logic involved, as well as the significance and the envisaged consequences of such processing for the data subject.
3. The controller shall provide the information referred to in paragraphs 1 and 2:
a) within a reasonable period after obtaining the personal data, but at the latest within one month, having regard to the specific circumstances in which the personal data are processed;
b) if the personal data are to be used for communication with the data subject, at the latest at the time of the first communication to that data subject; or
c) if a disclosure to another recipient is envisaged, at the latest when the personal data are first disclosed.
Articles 13 and 14 aim to ensure that processing is fair and transparent; that the data subject is at all times well-informed on 1) what data about him that is being processed, 2) what the purpose of the processing is and 3) what consequences could follow. Additionally, should the data be acquired directly from the data subject, he or she must be informed at that moment of time about all the relevant consequences. When the data are not collected directly from the data subject, a reasonable period of time is provided for following the provision of the 3rd paragraph of article 14 GDPR.
This regulation is clarified in Recital 61 as well:
“The information in relation to the processing of personal data relating to the data subject should be given to him or her at the time of collection from the data subject, or, where the personal data are obtained from another source, within a reasonable period, depending on the circumstances of the case.
As any right of not-absolute nature, the right to information has also a number of exceptions. Paragraph 4 of art 13 and paragraph 5 of article 14 list a number of exceptions.
Article 13(4) GDPR
Paragraphs 1, 2 and 3 shall not apply where and insofar as the data subject already has the information.
Article 14(5) GDPR
Paragraphs 1 to 4 shall not apply where and insofar as:
a) the data subject already has the information;
b) the provision of such information proves impossible or would involve a disproportionate effort, in particular for processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, subject to the conditions and safeguards referred to in Article 89(1) or in so far as the obligation referred to in paragraph 1 of this Article is likely to render impossible or seriously impair the achievement of the objectives of that processing. In such cases the controller shall take appropriate measures to protect the data subject’s rights and freedoms and legitimate interests, including making the information publicly available;
c) obtaining or disclosure is expressly laid down by Union or Member State law to which the controller is subject and which provides appropriate measures to protect the data subject’s legitimate interests; or
d) where the personal data must remain confidential subject to an obligation of professional secrecy regulated by Union or Member State law, including a statutory obligation of secrecy.
(12.2.2) Right of access
The second data subject right is the one to access the data that are being processed. The exercise of this right, gives the data subject the possibility to evaluate the lawfulness of the processing operations on the personal data. The exercise of this right is clearly linked with the principle of lawfulness, fairness and transparency introduced in article 5(1)(a) GDPR, but it is also linked to other principles as for example: purpose limitation, data minimisation, storage limitation and accountability . Article 15 of the GDPR regulates the right of access:
Article 15 GDPR – Right of access by the data subject
1. The data subject shall have the right to obtain from the controller confirmation as to whether or not personal data concerning him or her are being processed, and, where that is the case, access to the personal data and the following information:
a) the purposes of the processing;
b) the categories of personal data concerned;
c) the recipients or categories of recipient to whom the personal data have been or will be disclosed, in particular recipients in third countries or international organisations;
d) where possible, the envisaged period for which the personal data will be stored, or, if not possible, the criteria used to determine that period;
e) the existence of the right to request from the controller rectification or erasure of personal data or restriction of processing of personal data concerning the data subject or to object to such processing;
f) the right to lodge a complaint with a supervisory authority;
g) where the personal data are not collected from the data subject, any available information as to their source;
e) the existence of automated decision-making, including profiling, referred to in Article 22(1) and (4) and, at least in those cases, meaningful information about the logic involved, as well as the significance and the envisaged consequences of such processing for the data subject.
2. Where personal data are transferred to a third country or to an international organisation, the data subject shall have the right to be informed of the appropriate safeguards pursuant to Article 46 relating to the transfer.
3. The controller shall provide a copy of the personal data undergoing processing. For any further copies requested by the data subject, the controller may charge a reasonable fee based on administrative costs. Where the data subject makes the request by electronic means, and unless otherwise requested by the data subject, the information shall be provided in a commonly used electronic form.
4. The right to obtain a copy referred to in paragraph 3 shall not adversely affect the rights and freedoms of others.
In accordance with the right, the data subject is meant to not only have access to the data concerning him that are being processed, but the access itself must be easy and at reasonable intervals. However, such access is not without limitations, as for example when rights and freedoms of other data subjects are concerned or in case of potential disclosure of trade secrets and other intellectual property considerations. However, even in these cases, the data controller cannot fully refuse to provide the data subject with access. Case by case considerations will be made and taken into account.
(12.2.3) Right to rectification
The right to rectification of inaccurate information is contained in Article 16 of the Regulation. This short provision gives the possibility to data subjects to ask that inaccurate personal data are rectified and completed. The exercise of this right is clearly linked with the principle of accuracy in article 5(1)(d) GDPR.
Article 16 GDPR – Right to rectification
The data subject shall have the right to obtain from the controller without undue delay the rectification of inaccurate personal data concerning him or her. Taking into account the purposes of the processing, the data subject shall have the right to have incomplete personal data completed, including by means of providing a supplementary statement.
(12.2.4) Right to erasure (“right to be forgotten”)
The right to erasure is not an entirely new asset of the GDPR. It was regulated also in the Data Protection Directive, Article 12(b) as well as discussed in landmarking decisions of the CJEU, like in Google Spain, with regards to de-referencing from search engines and in Google v CNIL with regards to the territorial scope of de-referencing. In the GDPR, the right is clearly demarcated from other rights, with broader and more accurate application as provided in Article 17 of the Regulation.
Article 17 GDPR – Right to erasure
1. The data subject shall have the right to obtain from the controller the erasure of personal data concerning him or eher without undue delay and the controller shall have the obligation to erase personal data without undue delay where one of the following grounds applies:
a) the personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed;
b) the data subject withdraws consent on which the processing is based according to point (a) of Article 6(1), or point (a) of Article 9(2), and where there is no other legal ground for the processing;
c) the data subject objects to the processing pursuant to Article 21(1) and there are no overriding legitimate grounds for the processing, or the data subject objects to the processing pursuant to Article 21(2);
d) the personal data have been unlawfully processed;
e) the personal data have to be erased for compliance with a legal obligation in Union or Member State law to which the controller is subject;
f) the personal data have been collected in relation to the offer of information society services referred to in Article 8(1).
2. Where the controller has made the personal data public and is obliged pursuant to paragraph 1 to erase the personal data, the controller, taking account of available technology and the cost of implementation, shall take reasonable steps, including technical measures, to inform controllers which are processing the personal data that the data subject has requested the erasure by such controllers of any links to, or copy or replication of, those personal data.
3. Paragraphs 1 and 2 shall not apply to the extent that processing is necessary:
a) for exercising the right of freedom of expression and information;
b) for compliance with a legal obligation which requires processing by Union or Member State law to which the controller is subject or for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;
c) for reasons of public interest in the area of public health in accordance with points (h) and (i) of Article 9(2) as well as Article 9(3);
d) for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article 89(1) in so far as the right referred to in paragraph 1 is likely to render impossible or seriously impair the achievement of the objectives of that processing; or
e) for the establishment, exercise or defence of legal claims.
The right to erasure is not an absolute one. For your curiosity, you can check the Google transparency report and see their compliance rate as well as the types of requests for erasure that are received per country.
You can check the Google transparency report here.
The enforcement of the right to erasure has also a geographical limitation. This has been clarified by the CJEU in the Google v. CNIL case and it is strictly linked to the fact that the right to data protection is not yet recognised as a human right.
Case C‑507/17 Google v CNIL EU:C:2019:772
Relevant facts
The President of the CNIL (French Data Protection Authority) sent a formal notice to Google that, when granting a request from a natural person for links to web pages to be removed from the list of results displayed following a search conducted on the basis of that person’s name, it must apply that removal to all its search engine’s domain name extensions. Google refused to comply with that formal notice, confining itself to removing the links in question from only the results displayed following searches conducted from the domain names corresponding to the versions of its search engine in the Member States.
CNIL, after finding that Google had failed to comply with the formal notice within the prescribed period, imposed a penalty on that company.
Relevant question asked to the Court
Must the “right to de-referencing” be interpreted as meaning that a search engine operator is required, when granting a request for de-referencing, to deploy the de-referencing to all of the domain names used by its search engine so that the links at issue no longer appear, irrespective of the place from where the search initiated on the basis of the requester’s name is conducted, and even if it is conducted from a place outside the territorial scope of Directive [95/46]?
Arguments of the Court
[46] In the context of Regulation 2016/679, that right of a data subject to de-referencing is now based on Article 17 of that regulation, which specifically governs the ‘right to erasure’, also referred to, in the heading of that article, as the ‘right to be forgotten’.
[47] Pursuant to Article 17(1) of Regulation 2016/679, a data subject has the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller has the obligation to erase personal data without undue delay where one of the grounds listed in that provision applies. Article 17(3) of that regulation specifies that Article 17(1) does not apply to the extent that processing is necessary for one of the reasons listed in the former provision. Those reasons include, in particular, under Article 17(3)(a) of that regulation, the exercise of the right of, inter alia, freedom of information of internet users.
….
[55] It is true that a de-referencing carried out on all the versions of a search engine would meet that objective in full.
[56] The internet is a global network without borders and search engines render the information and links contained in a list of results displayed following a search conducted on the basis of an individual’s name ubiquitous (see, to that effect, judgments of 13 May 2014, Google Spain and Google, C‑131/12, EU:C:2014:317, paragraph 80, and of 17 October 2017, Bolagsupplysningen and Ilsjan, C‑194/16, EU:C:2017:766, paragraph 48).
[57] In a globalised world, internet users’ access — including those outside the Union — to the referencing of a link referring to information regarding a person whose centre of interests is situated in the Union is thus likely to have immediate and substantial effects on that person within the Union itself.
[58] Such considerations are such as to justify the existence of a competence on the part of the EU legislature to lay down the obligation, for a search engine operator, to carry out, when granting a request for de-referencing made by such a person, a de-referencing on all the versions of its search engine.
[59] That being said, it should be emphasised that numerous third States do not recognise the right to de-referencing or have a different approach to that right.
[60] Moreover, the right to the protection of personal data is not an absolute right, but must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality (see, to that effect, judgment of 9 November 2010, Volker und Markus Schecke and Eifert, C‑92/09 and C‑93/09, EU:C:2010:662, paragraph 48, and Opinion 1/15 (EU-Canada PNR Agreement) of 26 July 2017, EU:C:2017:592, point 136). Furthermore, the balance between the right to privacy and the protection of personal data, on the one hand, and the freedom of information of internet users, on the other, is likely to vary significantly around the world.
[61] While the EU legislature has, in Article 17(3)(a) of Regulation 2016/679, struck a balance between that right and that freedom so far as the Union is concerned (see, to that effect, today’s judgment, GC and Others (De-referencing of sensitive data), C‑136/17, paragraph 59), it must be found that, by contrast, it has not, to date, struck such a balance as regards the scope of a de-referencing outside the Union.
[62] In particular, it is in no way apparent from the wording of Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 or Article 17 of Regulation 2016/679 that the EU legislature would, for the purposes of ensuring that the objective referred to in paragraph 54 above is met, have chosen to confer a scope on the rights enshrined in those provisions which would go beyond the territory of the Member States and that it would have intended to impose on an operator which, like Google, falls within the scope of that directive or that regulation a de-referencing obligation which also concerns the national versions of its search engine that do not correspond to the Member States.
[63] Moreover, although Regulation 2016/679 provides the supervisory authorities of the Member States, in Articles 56 and 60 to 66 thereof, with the instruments and mechanisms enabling them, where appropriate, to cooperate in order to come to a joint decision based on weighing a data subject’s right to privacy and the protection of personal data concerning him or her against the interest of the public in various Member States in having access to information, it must be found that EU law does not currently provide for such cooperation instruments and mechanisms as regards the scope of a de-referencing outside the Union.
[64] It follows that, currently, there is no obligation under EU law, for a search engine operator who grants a request for de-referencing made by a data subject, as the case may be, following an injunction from a supervisory or judicial authority of a Member State, to carry out such a de-referencing on all the versions of its search engine.
(12.2.5) Right to restriction of processing
Under Article 18 of the GDPR, data subjects have the right to request the restriction of processing of their personal data in certain situations. This means that while the data is still with the controller, the latter cannot process it unless specific exceptions apply. The rightt to restriction is often used as a temporary safeguard, particularly when the accuracy of the data is contested or the individual has objected to the processing.
Article 18 GDPR – Right to restriction of processing
1. The data subject shall have the right to obtain from the controller restriction of processing where one of the following applies:
a) the accuracy of the personal data is contested by the data subject, for a period enabling the controller to verify the accuracy of the personal data;
b) the processing is unlawful and the data subject opposes the erasure of the personal data and requests the restriction of their use instead;
c) the controller no longer needs the personal data for the purposes of the processing, but they are required by the data subject for the establishment, exercise or defence of legal claims;
d) the data subject has objected to processing pursuant to Article 21(1) pending the verification whether the legitimate grounds of the controller override those of the data subject.
2. Where processing has been restricted under paragraph 1, such personal data shall, with the exception of storage, only be processed with the data subject’s consent or for the establishment, exercise or defence of legal claims or for the protection of the rights of another natural or legal person or for reasons of important public interest of the Union or of a Member State.
3. A data subject who has obtained restriction of processing pursuant to paragraph 1 shall be informed by the controller before the restriction of processing is lifted.
Recital 67 sheds some light on the methods that controllers can use in order to comply in practice with the exercise of the right to restriction.
Methods by which to restrict the processing of personal data could include, inter alia, temporarily moving the selected data to another processing system, making the selected personal data unavailable to users, or temporarily removing published data from a website. In automated filing systems, the restriction of processing should in principle be ensured by technical means in such a manner that the personal data are not subject to further processing operations and cannot be changed. The fact that the processing of personal data is restricted should be clearly indicated in the system.
(12.2.6) Right to data portability
Article 20 of the Regulation contains the right to data portability, allowing individuals to receive their personal data in a structured, commonly used and machine-readable format. It also gives them the right to transmit the data, where technically feasible, to another controller (service provider). This right aims to empower data subjects to retain control over their data and to facilitate switching between service providers. While theoretically the right has its clear merits, in practice it is difficult to exercise it. The exercice of the right is especially difficult with regards to transferring the data to other service providers in the digital society due to potential conflicts with other legal frameworks, as for example IP protection, as well as with regards to personal data being ofter intertwined with data of others.
Article 20 GDPR – Right to data portability
1. The data subject shall have the right to receive the personal data concerning him or her, which he or she has provided to a controller, in a structured, commonly used and machine-readable format and have the right to transmit those data to another controller without hindrance from the controller to which the personal data have been provided, where:
a) the processing is based on consent pursuant to point (a) of Article 6(1) or point (a) of Article 9(2) or on a contract pursuant to point (b) of Article 6(1); and
b) the processing is carried out by automated means.
2. In exercising his or her right to data portability pursuant to paragraph 1, the data subject shall have the right to have the personal data transmitted directly from one controller to another, where technically feasible.
3. The exercise of the right referred to in paragraph 1 of this Article shall be without prejudice to Article 17. That right shall not apply to processing necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller.
4. The right referred to in paragraph 1 shall not adversely affect the rights and freedoms of others.
(12.2.7) Right to object
Article 21 GDPR gives individuals the right to object to the processing of their personal data, especially when it’s based on legitimate interests or public interest. If the data subject objects, the controller must stop processing unless they can show strong overriding reasons. In case of data processed for direct marketing purposes, the data subject right to object is absolute, as it is indicated in the 2nd and 3rd paragraph of the article.
Article 21 GDPR – Right to object
- The data subject shall have the right to object, on grounds relating to his or her particular situation, at any time to processing of personal data concerning him or her which is based on point (e) or (f) of Article 6(1), including profiling based on those provisions. The controller shall no longer process the personal data unless the controller demonstrates compelling legitimate grounds for the processing which override the interests, rights and freedoms of the data subject or for the establishment, exercise or defence of legal claims.
- Where personal data are processed for direct marketing purposes, the data subject shall have the right to object at any time to processing of personal data concerning him or her for such marketing, which includes profiling to the extent that it is related to such direct marketing.
- Where the data subject objects to processing for direct marketing purposes, the personal data shall no longer be processed for such purposes.
- At the latest at the time of the first communication with the data subject, the right referred to in paragraphs 1 and 2 shall be explicitly brought to the attention of the data subject and shall be presented clearly and separately from any other information.
- In the context of the use of information society services, and notwithstanding Directive 2002/58/EC, the data subject may exercise his or her right to object by automated means using technical specifications.
- Where personal data are processed for scientific or historical research purposes or statistical purposes pursuant to Article 89(1), the data subject, on grounds relating to his or her particular situation, shall have the right to object to processing of personal data concerning him or her, unless the processing is necessary for the performance of a task carried out for reasons of public interest.
(12.2.8) Right in relation to automated decision-making, including profiling
Article 22 GDPR gives individuals the right not to be subject to automated decisions, including profiling, that produce legal effects or that similarly and significantly effect the data subject. The right not to be subject to automated decisions is especially relevant at a time when AI technology is quickly developing. Automated decisions are only allowed under strict conditions following paragraphs 2, 3 and 4 of the article, and have found support in the AI act as well (e.g. the human in the loop concept as well as the risk categorisation when processing special categories of data).
Article 22 GDPR – Automated individual decision-making, including profiling
1. The data subject shall have the right not to be subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning him or her or similarly significantly affects him or her.
2. Paragraph 1 shall not apply if the decision:
a) is necessary for entering into, or performance of, a contract between the data subject and a data controller;
b) is authorised by Union or Member State law to which the controller is subject and which also lays down suitable measures to safeguard the data subject’s rights and freedoms and legitimate interests; or
c) is based on the data subject’s explicit consent.
3. In the cases referred to in points (a) and (c) of paragraph 2, the data controller shall implement suitable measures to safeguard the data subject’s rights and freedoms and legitimate interests, at least the right to obtain human intervention on the part of the controller, to express his or her point of view and to contest the decision.
4. Decisions referred to in paragraph 2 shall not be based on special categories of personal data referred to in Article 9(1), unless point (a) or (g) of Article 9(2) applies and suitable measures to safeguard the data subject’s rights and freedoms and legitimate interests are in place.
Summary questions
(12.3) Obligations for the lawful processing of data
Up until this point, the discussion has been focused on the rights vested upon the data subject by the GDPR. Those rights are explicitly provided for by the Regulation and reflect the principles of data protection, which were discussed under article 5 GDPR. They also relate to, in various ways, the legal bases listed in Article 6 GDPR to ensure that any data processing is lawful and legitimate.
The next step is to dive into the corresponding obligations which are prescribed by the GDPR on the controllers (and processors) of data. Following the same logic, the obligations also reflect the general principles of data processing (Article 5 GDPR). While some of the obligations of controllers directly follow the exercise of the data subject rights, other obligations are to be found in special articles of the GDPR.
(12.3.1) Obligations linked to the principle of information security
The principle of information security is contained in Article 5(1)(f) GDPR:
[…] processed in a manner that ensures appropriate security of the personal data, including protection against unauthorized or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organizational measures […]
The corresponding obligations are listed under the following provisions of the Regulation:
Article 32 GDPR – Security of processing
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.
In case there is a data breach, further obligations are contained in Article 33-34 of the Regulation. Firstly, a notification to the Supervisory Authority (SA) must be sent without undue delay, at the latest within the 72 hours after becoming aware of the breach. Secondly, individuals affected must also be informed, however, this only applies if the data breach poses a very high risk.
(12.3.2) Obligations linked to the principle of accountability
The principle of accountability in article 5(2) GDPR, is central to the obligations of controllers and processors.
The controller shall be responsible for, and be able to demonstrate compliance with, paragraph 1 […]
The corresponding obligation on controllers in order to be able to show compliance is provided for in article 30 GDPR. It has to be noted that small and medium size companies, with up to 250 workers, are excluded by the obligation of keeping records, unless they engage in processing operations mentioned in the fifth paragraph of the article.
In May 2025, the Commission adopted a Single Market Simplification proposal that aims to cut the administrative cost that derive from the GDPR obligations for companies by introducing targeted changes to the rules on record-keeping for small and medium-sized companies and organisations under 750 employees. Such proposal is done in light of the data driven innovation aims of the Union that aims to be a competing actor in the global market and does not affect those situations when processing of personal data can be considered “high risk” under the GDPR.
Article 30 GDPR – Records of processing activities
1. Each controller and, where applicable, the controller’s representative, shall maintain a record of processing activities under its responsibility. That record shall contain all of the following information:
a) the name and contact details of the controller and, where applicable, the joint controller, the controller’s representative and the data protection officer;
b) the purposes of the processing;
c) a description of the categories of data subjects and of the categories of personal data;
d) the categories of recipients to whom the personal data have been or will be disclosed including recipients in third countries or international organisations;
e) where applicable, transfers of personal data to a third country or an international organisation, including the identification of that third country or international organisation and, in the case of transfers referred to in the second subparagraph of Article 49(1), the documentation of suitable safeguards;
f) where possible, the envisaged time limits for erasure of the different categories of data;
g) where possible, a general description of the technical and organisational security measures referred to in Article 32(1).
2. Each processor and, where applicable, the processor’s representative shall maintain a record of all categories of processing activities carried out on behalf of a controller, containing:
a) the name and contact details of the processor or processors and of each controller on behalf of which the processor is acting, and, where applicable, of the controller’s or the processor’s representative, and the data protection officer;
b) the categories of processing carried out on behalf of each controller;
c) where applicable, transfers of personal data to a third country or an international organisation, including the identification of that third country or international organisation and, in the case of transfers referred to in the second subparagraph of Article 49(1), the documentation of suitable safeguards;
d) where possible, a general description of the technical and organisational security measures referred to in Article 32(1).
3. The records referred to in paragraphs 1 and 2 shall be in writing, including in electronic form.
4. The controller or the processor and, where applicable, the controller’s or the processor’s representative, shall make the record available to the supervisory authority on request.
5. The obligations referred to in paragraphs 1 and 2 shall not apply to an enterprise or an organisation employing fewer than 250 persons unless the processing it carries out is likely to result in a risk to the rights and freedoms of data subjects, the processing is not occasional, or the processing includes special categories of data as referred to in Article 9(1) or personal data relating to criminal convictions and offences referred to in Article 10.
(12.3.3) Other important obligations
The GDPR provides for other important obligations that controllers and processors must follow for lawful processing of personal data.
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Data protection policies (Article 24(2) GDPR)
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Data protection by design and by default (Article 25 GDPR)
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Contracts with processors (Article 28 GDPR)
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Documentation of processing activities (Article 30 GDPR)
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Data Protection Impact Assessment (Article 35 GDPR)
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Prior consultation (Article 36 GDPR)
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Appointing a DPO (Articles 37-39 GDPR)
Question for self-reflection
- Have you ever exercised any of your data subject rights?
- In your opinion, is there a hierarchy between the principles of data processing? What about the data subject rights?
- Enter any internet website and read the cookie desclaimer. Is it GDPR compliant?
- What is the difference between the controllers obligations regarding ‘data protection by design’ and ‘data protection by default’?
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