Netherlands: GDPR Update: Data Protection Officers

Last Updated: 27 October 2017
Article by Marc Elshof, Barry Breedijk and Celine Van Es

Introduction

In this month's GDPR Update we address the position of the Data Protection Officer (the DPO). The DPO is a natural person overseeing the processing of personal data within an organisation. The DPO therefore can be seen as an 'internal supervisor'.

Under the General Data Protection Regulation (the GDPR), certain organisations are obliged to designate a DPO. Under the Dutch Data Protection Act (the DPA), the appointment of a DPO is optional: "(...) a controller (...) may appoint its own data protection official".

The GDPR provides more detailed guidelines regarding the designation of a DPO. From 25 May 2018, the designation of a DPO is mandatory for certain organisations (both data controllers and processors). From the moment the GDPR applies, the DPO will become a key person with respect to the privacy compliance within these organisations. The DPO will monitor compliance with the GDPR within the organisation and shall act as a point of contact for stakeholders (including the data subjects and the relevant supervisory authorities).

Obligation to designate a DPO

Under the GDPR, an organisation is obliged to designate a DPO where:

  1. the processing is carried out by a public authority or body (except for courts acting in their judicial capacity);
  2. 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
  3. the core activities of the controller or the processor consist of processing on a large scale of special categories of data (e.g. personal data relating to health) and personal data relating to criminal convictions and offences.

Paragraphs b) and c) include certain abstract concepts instead of clear criteria. The Article 29 Data Protection Working Party (an independent European advisory body, the WP29) published guidelines on DPOs, including on the interpretation of these abstract concepts.

The concept of 'core activities' refers to the main tasks of an organisation: the key operations necessary to achieve the organisation's goals. Core activities do not include supporting activities, such as the employee payroll administration or standard IT support.

The concept of 'large scale processing' cannot be expressed in precise numbers. However, there are several factors that should be considered when determining whether the processing is carried out on a large scale. These factors include the number of data subjects involved, the volume of data, the duration of the processing activity and the geographical extent of the processing activity.

The term 'regular and systematic monitoring' includes, in any case, all forms of tracking and profiling on the internet, including for the purposes of behavioural advertising. However, it should be noted that regular and systematic monitoring is not only restricted to the online environment. The WP29 interprets 'regular' as meaning one or more of the following: (i) ongoing or occurring at particular intervals for a particular period, (ii) recurring or repeated at fixed times or (iii) constantly or periodically taking place. The WP29 interprets 'systematic' as meaning one or more of the following: (i) occurring according to a system, (ii) pre-arranged, organised or methodical, (iii) taking place as part of a general plan for data collection or (iv) carried out as part of a strategy.

Ultimately, the responsibility to designate a DPO lies with the organisation itself. Unless it is clear beforehand that an organisation is not obliged to appoint a DPO, organisations are advised to record their internal assessment with regard to the decision not to appoint a DPO (taking into account the obligation of organisations to demonstrate compliance with the GDPR).

Organisations are free to appoint a DPO on a voluntary basis. However, if an organisation voluntarily designates a DPO, the same requirements apply to his or her designation, rights and tasks, as if the designation was mandatory. Instead of appointing a DPO in such case, organisations might consider engaging an (external) data protection advisor.

Designation of a DPO within a group of undertakings

A group of undertakings may appoint a single DPO provided that he or she is easily accessible from each establishment. Furthermore, organisations must take into account that DPOs should be able to effectively cooperate with and be contacted by local supervisory authorities and data subjects (whether inside or outside the organisation). The WP29 recommends to locate the DPO within the EU, however this is not mandatory (for example where the data controller is located outside the EU).

Easily accessible means in practice that the contact details of the DPO should be well-known within the organisation to ensure that, for instance, employees are able to contact the DPO directly and confidentially without having to request such information from their respective supervisors first. Organisations might consider publishing the contact details of the DPO on the intranet and on its website.

Moreover, the fact that the DPO should be easily accessibility means that communication with the DPO has to be in the language or languages used by the supervisory authorities and the data subjects concerned. This does not necessarily mean that a DPO must master all EU Member State languages. It is sufficient that he or she will be assisted by a team that enables data subjects and supervisory authorities to contact the DPO in their own languages. In this context, it should be noted that DPOs are generally not required to respond immediately, but that they are granted a reasonable period during which they are able to respond to requests of supervisory authorities and data subjects.

Professional qualities of the DPO

The designation of a DPO must be based on his or her professional qualities and, in particular, his or her expert knowledge of data protection law and practices, and the ability to fulfil his or her tasks. If the data processing activity is particularly complex, if a large quantity of sensitive data is involved or if the data will be transferred to various countries outside the EU, a higher level of expertise may be expected from the DPO. Additionally, the DPO must have adequate knowledge of the market sector and the organisation in which he or she is operating.

Position of the DPO within the organisation

Organisations must ensure that the DPO is able to perform his or her tasks and obligations in an independent manner. The fact that the DPO is employed by the data controller or by the processor may not affect its independent position. The DPO can be a staff member of the organisation or, for instance, an external consultant fulfilling his or her tasks on the basis of a services contract.

Furthermore, organisations are obliged to involve the DPO in all matters relating to personal data protection within the organisation from the earliest stage possible. Therefore, it is important to allow the DPO to actively participate in privacy related meetings within the organisation and that he or she will be immediately consulted in case of a data security incident. If the organisation is obliged to perform a privacy impact assessment, the organisation should involve the DPO in an early stage.

Organisations have to adequately support their DPOs in carrying out their tasks. DPOs must have access to the processed personal data and the processing activities, and adequate support in terms of financial resources in order to carry out his or her tasks and maintaining his or her necessary level of knowledge. Adequate support includes for example, granting staff and providing the DPO with sufficient opportunities to participate in training sessions. Furthermore, the DPO should be granted enough time to fulfil his or her tasks, especially if the DPO exercises his or her functions part-time.

To enable the DPO to perform her or his tasks in an independent matter, organisations have to implement several safeguards to guarantee the DPO's independency. In order to ensure the DPO's independence, the GDPR sets out that the DPO cannot be dismissed or penalised by the organisation for the performance of his or her tasks as DPO. Neither may the organisation provide the DPO with instructions regarding the performance of his or her tasks, for example, whether or not a data breach needs to be notified to a supervisory authority. The DPA already prohibits organisations from giving such instructions.

As under the DPA, under the GDPR the DPO is bound by secrecy or confidentiality concerning the performance of his or her tasks. Although the DPO may perform other functions in addition to his or her role as a DPO, he or she may only be entrusted with other tasks and duties if such do not result in a conflict of interests. In general, conflicting positions within the organisation include senior management positions such as CEO, CFO, CIO, COO, HR manager, et cetera. Furthermore, we advise against appointing an internal legal counsel as a DPO, as this may cause a conflict of interests where the DPO also carries out his or her tasks as an internal legal counsel (the interests of strict compliance with the GDPR against possible commercial interests).

Tasks of the DPO

Unlike under the DPA, under the GDPR the tasks of a DPO are well defined. The tasks of a DPO include:

  • informing and advising organisations and the organisation's employees on their obligations under the GDPR and other relevant data protection regulations;
  • monitoring organisation's compliance with the GDPR (and other relevant data protection regulations) and with organisation's policies in relation to the protection of personal data, including the assignment of responsibilities, awareness-raising and training of staff involved in processing operations;    
  • providing advice on whether or not to carry out a privacy impact assessment and monitoring the performance thereof; and
  • cooperating with and acting as a contact point for the competent supervisory authorities.

Organisations may add other tasks to the tasks listed above. For instance, the implementation and regularly updating of the mandatory record of processing activities.

Practical recommendations

Organisations should assess whether they are obliged to designate a DPO. If the organisation decides not to appoint a DPO, the internal analysis carried out should be documented, in order to demonstrate that the relevant factors have been taken into account. This also applies to the recommendations of the DPO, in particular where the data controller decides to deviate from his or her advice.

In case a DPO is appointed, it is of importance that organisations provide the DPO with the resources necessary to carry out his or her tasks in an adequate matter. If a single DPO is designated for several countries, it is important to set up a team assisting the DPO in the communication with the competent supervisory authorities and data subjects.

The DPO will become a key figure within many organisations, and therefore it is important to carefully select a person with sufficient knowledge and experience. Where an organisation decides to appoint a DPO internally, we recommend involving the DPO in a full and timely manner in the process in order to enable him of her to timely acquire the required knowledge concerning the GDPR and the processing activities within the organisation.

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Overview of subjects

January 2017 Territorial scope of the GDPR
February 2017 The Concept of Consent
March 2017 Sensitive Data
April 2017 Accountability, Privacy by Design and Privacy by Default
May 2017 Rights of Data Subjects (information notices)
June 2017 Rights of Data Subjects (access, rectification and portability)
July 2017 Rights of Data Subjects (objection, erasure and restriction of processing)
August 2017 Data Processors
September 2017 Data Breaches and Notifications
October 2017 Data Protection Officers
November 2017 Transfer of Personal Data (outside the EEA)
December 2017 Regulators (competence, tasks and powers)
January 2018 One Stop Shop
February 2018 Sanctions
March 2018 Processing of Personal Data in Employment
April 2018 Profiling and Retail
May 2018 Overview

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