United States: GDPR, Part III: The Data Protection Officer Requirement

This seven-part series analyzes the ways in which the forthcoming General Data Protection Regulation (GDPR), effective May 25, 2018, will impact the regulatory landscape for entities doing business with or transacting in the data of European Union citizens. The  first part of this series provided an overview of the history of pre-GDPR European data protection law. The second installment focused on the GDPR's breach notification requirements. The third installment, below, addresses when and how a data protection officer (DPO) may need to be appointed under the GDPR. Future installments of this series will address discrete additional aspects of the new regulation helpful to entities seeking to maintain an appropriate organizational compliance posture.

The Data Protection Officer Requirement

Under Article 37 of the GDPR, both data controllers (a person or entity that determines why and how personal data will be processed) and data processors (the person or entity that processes personal data on behalf of the controller) are required to appoint a DPO. Although working drafts of the GDPR created an exception to the DPO requirement for entities with less than 250 employees, that exception was dropped from the final regulation.

Article 37 sets out three conditions that, if present, trigger the DPO appointment requirement:

  1. The entity is a "public authority or body;" or
  2. "Core activities" of the entity include the "regular and systematic monitoring of data subjects on a large scale" (the term "regular and systematic monitoring of data subjects on a large scale" is not further defined, but examples may include processing of customer data in the regular course of business by financial institutions or insurance companies); or
  3. "Core activities" of the entity "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 referred to in Article 10." The "special categories of data" are defined in Article 9 of the GDPR and include such broad data sets as racial or ethnic origin, political opinions, and religious or philosophical beliefs.

The only guidance the GDPR has offered so far is that the "regular and systematic monitoring of data subjects on a large scale" means "processing a considerable amount of personal data at regional, national, or supranational level and which could affect a large number of data subjects," in contrast to medical professionals processing personal data about patients or attorneys processing clients' personal data. The guidance also suggests that "core activities" are those business processes that are a company's primary activities. So an automobile manufacturing company processing employee health data, even for large numbers of employees, would not consider the processing activity a "core activity."

Will U.S. firms also need to appoint a DPO?

The European Union Article 29 Working Party's December 2016 WP 243 Guidelines on DPOs indicate that U.S. businesses whose operations trigger GDPR compliance will also have to comply with the DPO requirement. In addition, even if a U.S. entity is exempt from the DPO requirement, the guidelines state that the appointment of a DPO is a matter of good practice. Accordingly, businesses without a DPO are more likely to face unfavorable regulatory enforcement in the event of a breach. Also, those without a DPO are also more likely to face a finding of liability in the event of litigation. Therefore, many U.S. companies may make the business decision to appoint a DPO, whether or not strictly required to do so. In addition, as the U.S. market continues its focus on third party vendor management, the guidelines will also cause many GDPR-compliant companies to force suppliers and other vendors to appoint DPOs.

What are the qualifications to serve as a DPO?

The DPO must be an individual with "knowledge of data protection law and practices" with a level of expertise that "should be determined in particular according to the data processing operations carried out and the protection required for the personal data processed by the controller or the processor." Beyond this guidance as to the expertise requirement, the GDPR is silent as to any credentialing requirement. However, the guidelines state that the DPO "shall be designated on the basis of professional qualities and, in particular, expert knowledge in data protection law and practices." In short, it is all but stated that the DPO must be a legally-trained professional.

To whom should a DPO report?

The DPO's role spans the organizational structure with Article 38's requirement that the DPO be involved in "all issues which relate to the protection of personal data." The DPO must have a direct reporting line to senior management. According to the guidelines, the DPO should be given an independent budget and staff, should attend meetings of the senior management, and should be involved in all matters of data governance assessment and incident response including communications with regulatory officials.

The DPO is to be independent and insulated from the organizational repercussions for actions taken within the scope of her or his role. Article 38 insulates the DPO from dismissal as reprisal, stating that "[h]e or she shall not be dismissed or penalized by the controller or the processor for performing his tasks." Additionally, the DPO is afforded a cloak of "secrecy or confidentiality concerning the performance of his or her tasks" when communicating with data subjects. The larger organization is forbidden from instructing the DPO regarding the "exercise of [his or her] tasks." Finally, the DPO's independence must be protected from any conflict of interest with any unrelated employment roles.

What does the DPO actually do?

The day-to-day activities of the DPO are not surprising. In short, the DPO is to provide information, advice, and monitoring across the business regarding the obligations imposed by GDPR and other data protection laws. This includes training, facilitating internal and external audits, managing the data protection program including interface with regulatory authorities, and participating in Article 35 data protection impact assessments.

The DPO role could also include performing these tasks for a series of subsidiaries and related entities if the company decides to appoint a single DPO, or supervising these tasks if individual DPOs are appointed for each discrete entity in the corporate umbrella. The DPO may also be tasked with interfacing with legal counsel when addressing the suitability of the contracts and safeguards put into place with the third-party service providers, vendors, and suppliers of the company.

What impact will the new DPO requirement likely have on an organization?

The role of a DPO is likely more expansive in scope and scale than the current role of a privacy professional in most organizations subject to the GDPR. This requirement will therefore force companies to decide whether to build the robust and independent DPO office envisioned by the GDPR, or to outsource the DPO role to law firms or outside counsel that would need to be more deeply integrated into the organizational structure of a GDPR-compliant entity. In any event, the DPO requirement presents many serious decisions for all GDPR-compliant organizations going forward.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions