Section 2

Security of personal data

 

Authors: Evangelia Papadaki and Sophie Stalla-Bourdillon

 

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.

 

A. Preliminary remarks

Following Chapter III, where the EU legislator regulates the rights of data subjects, Chapter IV deals with the obligations of data controllers and processors. Art. 32 comes under Section 2, which provides for rules concerning the security of personal data. The requirement that the processing of personal data be accompanied by the implementation of security measures has been at the heart of the EU data protection law. Under the DPD regime, controllers were responsible for ensuring security of processing against both external threats (e.g., malicious hackers) and internal threats (e.g., poorly trained employees). The GDPR has increased the security requirements for the processing of personal data considerably in comparison with the DPD. Although the obligation itself remains essentially the same, the GDPR moves the security obligation into the data protection principles reinforcing the idea that data security is of vital significance; and it imposes the security obligation on both data controllers and processors, thus making processors across the EU directly liable for their processing activities.

The security principle, one of the basic principles pervading the GDPR, is established by Art. 5 para. 1 lit. f, according to which personal data shall be “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”. The obligation to secure the processing of personal data needs to be conceived as an obligation encompassing various security measures at different levels. In other words, protecting personal data means ensuring both network and information security. The term ‘network security’ is closely related to the term ‘information security’; this is evident in the definition provided in recital 49, which describes network and information security as “the ability of a network […] to resist, at a given level of confidence, accidental events or unlawful or malicious actions that compromise the availability, authenticity, integrity and confidentiality of stored or transmitted data, and the security of the related services offered by, or accessible via, these networks […], by public authorities, Computer Emergency Response Teams (CERTs), Computer Security Incident Response Teams (CSIRTs), providers of electronic communication networks and services, and by providers of security technologies and services”.

The aim of the security principle is to assure that a network performs its critical functions correctly and preserve confidentiality (ensuring the protection of data from unauthorised access), integrity (ensuring that data are protected against unauthorised modification and/or destruction) and availability (ensuring that data are accessible when needed) of all systems and information in the network. The main elements of the definition of network and information security, that is, confidentiality, integrity and availability of personal data, should be understood as the necessary precautions that must be applied to data processing, be it creation of data, their use, their backup, their archiving or their destruction, in order to prevent alteration and damage or access by non-authorised third parties. The obligation to secure the processing of personal data does not merely refer to the means of storing or transmitting data but covers every aspect of the processing.

The technology neutral approach adopted in the EU legal framework is reflected in the wording of the laws imposing security obligations. By virtue of Art. 17 of the DPD, Art. 13 lit. a of the Framework Directive and Art. 4 of the ePrivacy-Directive, data controllers are required to take “appropriate technical and organisational measures” to safeguard the personal data they process. Using similar wording, the NIS Directive requires operators of essential services and digital service providers to take “appropriate and proportionate technical and organisational measures” to manage risks posed to the security of network and information systems (Art. 14 and Art. 16). Moreover, the proposal for the ePrivacy Regulation refers to the security requirements laid down in the GDPR to regulate the collection of information emitted by end-users’ terminal equipment (Art. 8 para. 2 lit. b).

B. Legislative history

During the trilogue, there were no significant divergences in respect of the security obligations imposed on data controllers and processors. The few differences identified are the following: First, only the Parl-R required the implementation of security measures appropriate to the risk as determined by a DPIA. Second, only the Council-R formally recognised pseudonymisation and encryption as examples of appropriate security measures. Third, both the Council-R and the Parl-R objected to the Comm-P that authorised the Comm. to prescribe certain mandatory security measures.

 

 

 

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