A quantitative approach to the GDPR’s anonymisation and “appropriate technical and organisational measures” tests
Nils Holzenberger, Winston Maxwell · Computer law & security review · 2025
This article examines two tests from the European General Data Protection Regulation (GDPR): (1) the test for anonymisation (the “anonymisation test”), and (2) the test for applying “appropriate technical and organisational measures” to protect personal data (the “ATOM test”). Both tests depend on vague legal standards and have given rise to legal disputes and differing interpretations among data protection authorities and courts, including in the context of machine learning. Under the anonymisation test, data are sufficiently anonymised when the risk of identification is “insignificant” taking into account “all means reasonably likely to be used” by an attacker. Under the ATOM test, measures to protect personal data must be “appropriate” with regard to the risks of data loss. Here, we use methods from law and economics to transform these two qualitative tests into quantitative approaches that can be visualized on a graph. For the anonymisation test, we chart different attack efforts and identification probabilities, and propose this as a methodology to help stakeholders discuss what attack efforts are “reasonably likely” to be deployed and their likelihood of success. For the ATOM test, we use the Learned Hand formula from law and economics to chart the incremental costs and benefits of privacy protection measures to identify the point where those measures maximize social welfare. The Hand formula permits the negative effects of privacy protection measures, such as the loss of data utility and negative impacts on model fairness, to be taken into account when defining what level of protection is “appropriate”. We apply our proposed framework to several scenarios, applying the anonymisation test to a Large Language Model, and the ATOM test to a database protected with differential privacy.