GDPR and the role of the Data Protection Officer
The GDPR, which is due to come into effect on 25 May 2018, will make it mandatory for certain organisations to designate a data protection… Read more
The GDPR, which is due to come into effect on 25 May 2018, will make it mandatory for certain organisations to designate a data protection officer (‘DPO’). These are controllers and processors of personal data that are –
- public authorities and bodies (except certain courts);
- organisations whose core activities consist of regular and systematic monitoring of data subjects on a large scale; and
- organisations whose core activities consist of processing special categories of data on a large scale.
Aside from these mandatory categories laid down in the GDPR, a Member State’s law can designate DPOs in other cases, and controllers and processors outside of these categories can also appoint a DPO voluntarily.
DPOs will play a key role in compliance with the General Data Protection Regulation (‘GDPR’) for many organisations and the Article 29 Working Party has published ‘Guidelines on Data Protection Officers’ (‘Guidelines’) and a set of FAQs that set out useful information on the professional qualities, position and tasks expected of DPOs, which we have summarised below –
The DPO must be selected on the basis of professional qualities and, in particular, expertise in national and European data protection law and practices and an in-depth understanding of the GDPR. A higher level of expertise is required the more sensitive, complex and greater the amount of data that the organisation processes. Knowledge of the business sector and of the controller’s organisation is useful also so that the DPO understands the processing operations, information systems, data security and data protection needs.
The DPO is expected to have certain personal qualities and knowledge – such as integrity and high professional ethics – to enable them to fulfil their tasks, and to play a key role in fostering a data protection culture within the organisation and helping to implement essential elements of the GDPR.
The DPO’s contact details must be published and communicated to the relevant supervisory authorities so that data subjects and the supervisory authorities can contact the DPO easily, directly and confidentially. A group of undertakings can designate a single DPO so long as they are easily accessible from each establishment and are a contact point for data subjects, the supervisory authorities and within the organisation, including in the language(s) of the supervisory authorities or data subjects concerned. As an alternative to appointing a DPO internally, an organisation could enter into a service contract with an external individual or organisation that fulfils the function of the DPO.
The controller and processor must ensure that the DPO is involved, from the earliest stage possible, in all issues which relate to data protection. The organisation should ensure that the DPO is invited to participate regularly in meetings of senior and middle management, the DPO should be present where decisions with data protection implications are taken, and all relevant information must be given to the DPO in a timely manner in order to allow the DPO to provide adequate advice. The DPO’s opinion must always be given due weight and if an organisation disagrees with the DPO’s opinion, the reasons for not following the DPO’s advice must be documented. The controller must seek the DPO’s advice when carrying out a data protection impact assessment.
The DPO must be given active support by senior management, the necessary resources (e.g. time, budget, infrastructure and staff) to carry out their tasks, access to personal data, processing operations and other functions within the organisation, and continuous training to stay up to date with developments in data protection.
The DPO must also have a sufficient degree of autonomy within their organisation. DPOs must not receive any instructions regarding the exercise of their tasks and they must be able to perform their duties and tasks in an independent manner. DPOs should not be dismissed or penalised (e.g. denied or delayed promotion, prevented from career advancement or denied benefits that other employees receive) by the controller or processor for performing their duties as a DPO.
If the DPO has other tasks and duties, they must not cause a conflict of interests. In particular, the DPO cannot also hold a position in the organisation in which they determine the purposes and the means of the processing of personal data (e.g. the role Head of Marketing or Head of IT would be incompatible with the role of DPO). The structure of the organisation should be considered in each case.
Failure to appoint a DPO in the 3 mandatory situations listed above is grounds for a fine of the greater of up to €10 million or up to 2% of total worldwide annual turnover. In relation to these and other fines, the regulator will take into account any action taken by the controller or processor to mitigate the damage suffered by data subjects – this could well include being able to show that you have appointed a DPO either mandatorily or voluntarily.
 Article 37 GDPR.
 See Articles 37 to 39 of the GDPR for the designation, position and tasks of a DPO.
 Article 29 Data Protection Working Party Guidelines on Data Protection Officers (‘DPOs’), adopted on 13 December 2016 http://ec.europa.eu/information_society/newsroom/image/document/2016-51/wp243_en_40855.pdf
 WP 243 Annex – Frequently Asked Questions http://ec.europa.eu/information_society/newsroom/image/document/2016-51/wp243_annex_en_40856.pdf
 Article 83(4)(a) GDPR.
 Article 83(2) GDPR.
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