The Data Protection Officer
The General Data Protection Regulation (GDPR) which came into force on the 25th May 2018 brought with it a slew of new obligations on Data Controllers (controllers), key among which is the appointment of the Data Protection Officer (DPO). The DPO acts as a
focal point for a controller on all matters relating to the protection of personal data. The GDPR requires that a DPO is appointed in cases where:
- the processing is carried out by a public authority or body, except for courts acting in their judicial capacity;
- the core activities of the controller or the processor consist of processing operations which, by virtue of their nature, their scope and/or their purposes, require regular and systematic monitoring of data subjects on a large scale; or
- the core activities of the controller or the processor consist of processing on a large scale of special categories of data pursuant to Article 9 and personal data relating to criminal convictions and offences.
The most important of these scenarios from a business perspective is the second one. Companies are known to process data on a large scale and therefore it is generally held that most companies require the services of a DPO for the purposes of full compliance with GDPR. This can either be a person selected from within the organisation or an outsourced individual. The important thing is that the person selected is conversant with Data Protection laws.
Duties of the DPO
The DPO is expected to carry out a variety of functions within an organisation. These are the following:
- to inform and advise the controller or the processor and the employees who carry out processing of their obligations pursuant to this Regulation and to other Union or Member State data protection provisions;
The above is the most straightforward of the obligations of the DPO. This is basically acting as the main point of reference to the members of a company on all matters relating to data protection.
- to monitor compliance with GDPR, with other Union or Member State data protection provisions and with the policies of the controller or processor in relation to the protection of personal data, including the assignment of responsibilities, awareness-raising and training of staff involved in processing operations, and the related audits;
This duty involves the monitoring of the operation to ensure its compliance with prevailing laws.
- to provide advice where requested as regards the data protection impact assessment and monitor its performance;
This duty regards the providing of advice in relation to the relative risk of any processing operations which the controller may wish to engage in with reference being made to the data protection impact assessment which would have been carried out by the DPO prior to the commencement of processing.
- to cooperate with the supervisory authority;
This involves carrying out any direct orders which may have been issued by the supervisory authority. It is of particular importance in cases where the authority has issued constructive guidance to the company on how better to process data in order to better observe the provisions of GDPR.
- to act as the contact point for the supervisory authority on issues relating to processing, including the prior consultation referred to in Article 36, and to consult, where appropriate, with regard to any other matter.
This duty involves communication with the supervisory authority on all matters relating to data protection such as the reporting of data security breaches to the authority.
The Position of the DPO
Controllers and the processors are to ensure that the data protection officer is involved, properly and in a timely manner, in all issues which relate to the protection of personal data.
Furthermore controllers and processors are required to support the DPO in performing the tasks specified above by providing resources necessary to carry out those tasks and access to personal data and processing operations, and to maintain his or her expert knowledge.
They must also ensure that the DPO does not receive any instructions regarding the exercise of those tasks. The DPO shall not be dismissed or penalised by the controller or the processor for performing his tasks. The DPO is also expected to directly report to the highest management level of the controller or the processor.
In all cases the DPO shall be bound by secrecy or confidentiality concerning the performance of his or her tasks. The DPO may fulfil other tasks and duties. It remains the duty of the controller or processor shall ensure that any such tasks and duties do not result in a conflict of interests.
On the issue of conflicts of interest, one has to see the case of Proximus from April 2020 which involved Proximus, Belgium’s largest telecommunications company appointing its own director of audit, risk and compliance as a DPO. It was held that in this case, it was likely that the director would end up monitoring himself which would lead to a very obvious conflict of interest. In general it is held best practice that the DPO’s role is either someone dedicated to the role or that the role is simply outsourced where the Controller feels that it lacks the core competency to appoint a DPO. Incidentally, it is possible to outsource the role of a DPO.
Why is any of this important?
All companies subject to GDPR need to appreciate that in this day and age having a good DPO appointed is the difference between compliance with GDPR and getting slapped with a sizable fine by the Data Protection authorities for non-compliance. Fines can go as high as the higher of €20,000,000 or 4% of global annual turnover. Just last year, British Airways was slapped with a fine of €204,600,000 simply because it was found that it lacked the appropriate technical and organizational measures to ensure information security.
At GD Advocates, we offer the service of having an outsourced DPO who, acting in a consultative role like all DPO’s, can help ensure compliance and avoid fines.
For more information on this service contact matthew@gdadvocates.com.