For years, cybersecurity and privacy professionals have focused their GDPR compliance efforts on consent banners, data processing agreements, and breach notification protocols. While essential, this focus has often overshadowed a more fundamental, and increasingly enforced, provision: Article 25, “Data Protection by Design and by Default” (DPbDD). Once seen as a "soft" obligation, regulators are now wielding Article 25 as a primary tool, levying massive fines that penalize systemic failures in system architecture. For global organizations, ignoring this article is no longer a compliance gap—it's a critical strategic risk.
The Twin Pillars of Proactive Privacy
Article 25 moves privacy from a legal checklist to an engineering discipline, mandating a proactive approach throughout the entire data processing lifecycle. Its power lies in two core obligations:
- Data Protection by Design (Article 25(1)): This requires organizations to embed data protection principles directly into the architecture of their technologies and business processes from the very beginning. It’s not an add-on, but a foundational requirement that must be continuously reviewed against the "state of the art".
- Data Protection by Default (Article 25(2)): This is the practical application of the design principle. It mandates that systems must be configured with the most privacy-protective settings by default, requiring no action from the user. This includes minimizing the amount of data collected, limiting its accessibility, and shortening storage periods by default. The system must not make personal data accessible to an "indefinite number of natural persons" without the individual's direct intervention.
The High Cost of Architectural Flaws: Landmark Enforcement
The shift from theory to harsh reality is best illustrated by recent enforcement actions where Article 25 was the centerpiece.
- Meta’s €265 Million Data Scraping Fine: In 2022, the Irish Data Protection Commission (DPC) fined Meta not for a traditional data breach, but for a failure of design. The DPC found that Facebook’s platform tools were inherently vulnerable to data scraping, a foreseeable risk that allowed attackers to harvest the data of 533 million users. The violation was a failure to implement appropriate technical and organizational measures
by design to prevent such abuse.
- TikTok’s €345 Million Children's Privacy Fine: In 2023, the Irish DPC fined TikTok for a clear failure of privacy by default. The platform’s settings for child users were public-by-default, making their content globally accessible without their intervention. This case underscores the heightened duty of care for vulnerable users and confirms that default settings must be the most private option available.
These cases, along with a €40 million fine against ad-tech firm Criteo for a non-compliant consent mechanism design, reveal a clear pattern: regulators are penalizing the root cause of violations found in system architecture, not just the symptoms.
A Global Standard in the Making
The principles of DPbDD are not confined to Europe. A global consensus is emerging, making a robust DPbDD program a strategic asset for multinational companies.
- California (CPRA): While not using the same terminology, the CPRA’s requirements for data minimization, purpose limitation, and its prohibition of "dark patterns" functionally mandate a "by design" approach. The mandate to honor Global Privacy Control (GPC) signals is a clear example of privacy by default.
- Brazil (LGPD): Brazil’s law was heavily inspired by the GDPR and includes a "principle of prevention". More explicitly, Article 46 requires agents to adopt security measures "from the design phase of the product or service until its execution," directly mirroring the GDPR’s language.
Organizations that engineer their systems to meet the high bar of Article 25 will find themselves better prepared to comply with new regulations as they emerge worldwide.
From Policy to Practice: Operationalizing DPbDD
For cybersecurity and privacy professionals, implementing Article 25 requires moving beyond policy and embedding privacy into technical and organizational workflows.
- Integrate Privacy into Development: Data Protection Impact Assessments (DPIAs) can no longer be a one-off exercise. For agile development, DPIAs must become living documents, with privacy risk assessments integrated into each sprint.
- Leverage Technical Safeguards: Privacy Enhancing Technologies (PETs) are the building blocks of DPbDD. Core techniques like pseudonymization and end-to-end encryption should be standard practice, not afterthoughts.
- Adopt Robust Frameworks: Frameworks like the NIST Privacy Framework provide a structured methodology for identifying and managing privacy risks in line with DPbDD objectives.
Article 25 has fundamentally changed the landscape of data protection. It demands that privacy be treated as a core engineering discipline, not a peripheral legal task. For professionals tasked with protecting data, the message from regulators is clear: if you fail to design for privacy, you should design a plan for paying the fine.
