Ireland: GDPR Series: When Should A DPO Be Appointed?

Last Updated: 9 November 2017
Article by Rob Corbet

Rob Corbet, Partner at Arthur Cox, clears up some common misconceptions surrounding the GDPR's requirement on appointment of Data Protection Officers

The countdown to GPDR commencement on 25th May 2018 continues and one of the most pressing questions concerning organisations is 'who will be our Data Protection Officer ('DPO')'? The topic has sparked a lot of confusion so it's worth distilling the facts from the fiction so that informed decisions can be made.

Must I appoint a DPO?

Article 37(1) GDPR requires data controllers and processors to designate a DPO in any case where:

  • the processing is carried out by a public authority or body;
  • the 'core activities' of the controller/ processor consist of processing operations which 'require regular and systematic monitoring of data subjects on a large scale'; or
  • the core activities of the controller/ processor consist of processing on a large scale of 'special categories of data' or personal data relating to criminal convictions and offences.

While the public sector is covered by the first requirement, the vast majority of private sector companies will not be required to appoint a DPO. Most private companies do not engage in systematic monitoring as a core activity and, to the extent that they process health, convictions or other sensitive/special categories of data, they do so in a manner that is incidental to their business, typically in the ordinary course of personnel administration.

In cases where there could be a debate as to whether or not any of the three criteria apply, the Article 29 Working Party Guidelines on DPOs, first issued in December 2016 and revised in April 2017, ('the Guidelines') recommend that controllers and processors document the internal analysis carried out to determine whether or not a DPO is to be appointed in order to demonstrate that the relevant factors have been taken into account properly.

Should I appoint a DPO anyway?

While many organisations will escape the requirements of Article 37(1), they might well already have a person performing the DPO role, or they might be considering appointing someone given the depth of work required to meet GDPR standards and to 'demonstrate' compliance as required by Article 5(2).

It is worth briefly pausing before taking this step. According to the Guidelines, the requirements under Articles 37 to 39 of the GDPR will apply equally to voluntary and mandatory DPOs in relation to their designation, position and tasks. This is significant on at least two levels.

First, even if you decide to voluntarily appoint a DPO, there is an obligation in Article 37(5) to ensure you appoint a person who is adequately resourced and has 'expert knowledge of data protection law and practices' and on the basis of their 'professional qualities'. The Guidelines suggest that the level of expertise 'must be commensurate with the sensitivity, complexity and amount of data an organisation processes' and that prospective DPOs 'should have expertise in national and European data protection laws and practices and an in-depth understanding of the GDPR.'

Secondly, the DPO role will differ from most employees or contractors in that it is statutorily independent and protected. DPOs must be independent, avoid conflicts of interest and they cannot receive instruction regarding the performance of their tasks. Article 38(3) also provides DPOs with protected employment status, meaning that organisations cannot dismiss or sanction DPOs for performing their tasks.

So while an organisation might initially lean towards voluntarily appointing a DPO, they may well re-think the decision when they consider the organisational and employment law implications.

Is it better to simply outsource the DPO role?

Article 37(6) of the GDPR makes it clear that a DPO can be an employee or a contractor. Given the concerns identified above, it might be tempting therefore to outsource the role. However, again this is not a straightforward decision given that the role of a DPO includes being 'involved properly and in a timely manner, in all issues which relate to the protection of personal data'. In this regard, the Guidelines suggest that controllers and processors should develop data protection guidelines or programmes setting out when the DPO must be consulted.

Further, the DPO must have a reporting line into the 'highest management level' of the controller/processor which would not be something typically associated with external contractors.

Is the DPO personally liable?

The Working Party's Guidelines state that DPOs are not personally responsible in a case of non-compliance with the GDPR. Unfortunately, this is not explicitly stated in the GDPR text, so DPOs might be understandably cautious given the civil remedies and sanctions regime that comes with the GDPR.

Decision time

For those who are clearly subject to a mandatory DPO appointment, now is the time to identify appropriate candidates and to develop a governance structure which will work for their organisations. However, for the majority of entities who are not subject to mandatory appointments, consider if GDPR compliance can be achieved without a formal appointment and whether this represents a better fit for their businesses.

Previously published in PDP Journals

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.

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