Authors: Alexander Roßnagel and Philipp Richter
CHAPTER II
PRINCIPLES
- 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’).
- The controller shall be responsible for, and be able to demonstrate compliance with, paragraph 1 (‘accountability’).
I. Aim and function of the provision
The provision lays down general principles relating to processing of personal data (→ Art. 4 (2) mn. 1 et seq.). These principles are imprinted into the following provisions of the GDPR and must be observed during application of the provisions (→ mn. 17). They are directly applicable and binding on all addressed parties (→ mn. 4, 25). A violation of the principles will make processing unlawful.[1]
The provision implements Art. 8(2) CFR. This specification of the fundamental right to data protection prescribes in sentence 1 the principles of lawfulness, fairness and purpose limitation. Sentence 2 provides the right of access as part of the principle of transparency and the right to rectification as implementation of the principle of accuracy.
The principles also concretise the general provisions concerning the right to data protection in Art. 16(2) TFEU, in Art. 8 ECHR and in Art. 5 Convention 108+ of the Council of Europe.
The principles are directly binding on all parties addressed by the GDPR, but in particular, as clarified in para. 2, to the controller, who is responsible for, and must be able to demonstrate compliance with them. This stays true if data processing has been transferred to a processor (→ Art. 24 mn. 12 ). The principles also guide activities of the SAs. They have to concretise the principles through their information, consultations, assistance and decrees in respect to the specific application (→ Art. 58 mn. 1). According to Art. 57(1) lit. a, they also need to prevent or remove violations of the principles (→ Art. 57 mn. 9).[2]
II. Legislative history
The provision very much resembles the provision in Art. 6 DPD.[3] Case law and literature concerning Art. 6 DPD may therefore – considering the dogmatic differences between directive and regulation – be transferred to a large extent to the provision. The principle of transparency is missing in Art. 6(1) lit. a DPD, Art. 5(1) lit. f GDPR, including the principles of integrity and confidentiality is missing completely in the DPD. Both principles are not included in Art. 6(1) DPD, however, both are at the bottom of the directive and are expressed in the data subject’s right to access in Art. 12 DPD and in the obligation to implement security measures in Art. 17 DPD. In comparison to the provision, the obligation of the controller to be able to demonstrate compliance with the principles is missing in Art. 6(2) DPD.
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[1]Roßnagel, Grundsätze, 92; Reimer in Sydow Art. 5 para. 2.
[2]Cf. Roßnagel, Datenschutzaufsicht nach der DSGVO, 2017, 95 et seq.
[3]De Terwangne, ‘Art. 5’ in Kuner/Bygrave/Docksey, B. 1; concerning the following cf. Roßnagel, ‘Art. 5’, in Simitis/Hornung/Spiecker gen. Döhmann, para. 5 et seq.