Years of legislative efforts resulted last year in a substantial change in the regulation of personal data protection at the level of the European Union upon the adoption of Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) ("GDPR" or "Regulation"). The GDPR as a new piece of legislation introduces a number of new concepts and legal institutes in relation to personal data protection. One of them is the duty to designate a Data Protection Officer ("DPO") which is prescribed for certain categories of data controllers and processors. The Regulation ascribes key importance to designated officers in the data protection context and sets out conditions for their designation, their position within the data controller's/ processor's organisation and specifies their tasks.
1. What kind of controller must designate a DPO?
The term designation of a DPO which is used in in particular in the state administration context means the appointment of a natural or legal person as a personal data officer. It can be stated with certainty that this duty is imposed on public authorities or public entities1 with the exception of courts acting within the framework of their judicial powers. It will be more complicated to determine to which data controllers the duty to appoint a DPO applies in the private sphere.
Other cases of mandatory designation expressly anticipated by the Regulation can be inferred only upon interpretation, as the duty to designate a DPO is related to (i) the nature, scope or purpose of an extensive and systematic processing as well as (ii) the category of personal data being processed.2 As guidelines for correct interpretation of the aforementioned indeterminate legal concepts instructions issued by the working party established on the basis of Art. 29 of Directive 95/46/EC3 ("WP29") may be used. Instructions which have been already issued include also guidelines on the DPO4 which deal, among others, with the interpretation of the scope of processing. In accordance with these instructions the scope of processing depends on the number of data subjects, scope of collected data, on whether or not the processing is constant and on territorial scope. Other concepts used by the Regulation such as "systematic and regular application" would also deserve a broader legal analysis, however, their interpretation would be too excessive for this article.
Thus, private entities should first evaluate the above attributes relating to the scope of processing to rule out any doubts about the designation/non-designation of a DPO. Where in doubt it can be recommended to controllers to prepare an analysis – a document elaborating in particular on reasons for not designating a DPO – by which one of the duties imposed by the GDPR5 would be fulfilled, namely that the controller must be able to demonstrate compliance of its activity with the Regulation. Similarly, in its opinion on the DPO WP29 recommends that controllers that are not required to designate a DPO and that do not designate a DPO even on a voluntary basis document the internal analysis carried out taking into account the relevant factors of why no DPO was designated. Such an analysis will most likely be required by the supervisory authority in the pursuit of its inspections/supervisory activities and/or during a prior consultation with the supervisory body.
2. Requirements for a person acting as a DPO
The basic requirements for a DPO are set out in Article 37(5) of the Regulation. A DPO should be designated primarily on the basis of professional qualities.
The Regulation defines professional qualities as expert knowledge of data protection law and practices. It is apparent that this will include mainly knowledge of national and European data protection law, adequate experience and, in particular in-depth knowledge of GDPR also with regard to specifics which the respective Member States may embody in their national legislations.6 The aforementioned knowledge required from the DPO are only a prerequisite for serving in such capacity and it can be assumed that the extent of such knowledge should not be limited only to the Regulation but should include also the relevant regulations applicable within the field in which the controller or processor carry out activities. For example, in connection with the processing of medical documentation more than just an elementary knowledge of the Act on Medical Services will be required.
The DPO should have a detailed knowledge of data processing processes and technologies employed by the controller or processor for whom the DPO will act in such capacity. However, the level of required expertise will differ depending on sensitivity, complexity and scope of processed data. Furthermore, it can be expected that in connection with the possible cross-border inspections by supervisory authorities of the EU Member States the DPO should have such a level of command of at least one of the EU official languages that he or she can communicate with such foreign supervisory authorities7 and/or with the recently established European Data Protection Board.
The DPOs will play a key role in data protection processes, therefore, they will need to have adequate abilities including personality qualities in order to be able to fulfil all tasks imposed on them by the controller. Although at first sight it may seem that best qualified for serving as a DPO is a person being in the position of the controller's employee or in a similar relationship with the controller and/or already performs duties owing to which he or she is familiar with data flows within the organisation, it will not be possible for such person in some cases to act as a DPO with regard to incompatibility of certain duties assumed by the GDPR. As a rule, positions within an organisation with an inherent conflict of interests, in particular those which lead to the determination of purposes and means of processing (i.e. in particular managerial positions), cannot be designated as a DPO.8
3. DPO's tasks
Key tasks of a DPO are defined in Art. 39 of the Regulation whereas other duties are set out in other parts of the GDPR.9 The main task of the DPO is to monitor compliance of data processing activities with the Regulation. For this purpose the DPO should cooperate with the controller or processor in implementing suitable technical and organisational measures ensuring compliance and to provide advice and recommendations in this connection. Cooperation with the supervisory authorities will be of key importance as knowledge in the data protection field should help enhance the efficiency of communication. The supervisory authority should regard the DPOs as its partners and peers. Under the Regulation a DPO will act as a contact point for those authorities in matters relating to data processing. All internal policies, procedures etc. should be prepared or commented by the DPO.
The DPO is authorised to consult the supervisory authority in any matter in which he or she is not bound by the confidentiality duty. The DPO's hesitation or incorrectly formulated advice to the controller/processor may trigger supervisory activities. Therefore, the selection of a DPO should be thoroughly considered with regard to the significant potential fines set out in the Regulation.
The DPO will play an important role also in the fulfilment of other new duties under the GDPR – data protection impact assessments. WP29 expressly recommends that the controller should seek from the DPO a data protection impact assessment, in particular in relation to the question of whether or not to carry out such impact assessment, what methodology to follow when carrying out the assessment, what safeguards to apply to mitigate any risks to the rights of data subjects, whether or not the data protection impact assessment has been correctly carried out and whether its conclusions are in compliance with the Regulation. A high level of the DPO's qualifications is desirable with regard to the complexity of the subjects to be handled.
4. A staff member or a contractor?
The Regulation assumes that the DPO may be a staff member of the controller or processor, or fulfil the tasks on the basis of a service contract. Thus, not only an individual but also a legal entity may be designated to fulfil the tasks. Keeping this in mind the requirement imposed by Art. 38(6) of the Regulation should be reminded under which it is required that none of such tasks and duties assigned to the DPO as a staff member by the employer result in a conflict of interests.
Article 38(3) GDPR which guarantees autonomy of the DPO in carrying out their activities can be regarded as a key provision in this connection. It is required under this provision that the DPO does not receive any instructions regarding the exercise of his or her task tasks in the field of data protection and that even he or she shall not be dismissed or penalised by the controller or the processor for performing his tasks. Thus the DPO may not receive any instructions regarding the result to be achieved or how to handle, for example, complaints from data subjects.
With regard to the DPO position which already exists in some EU countries and procedural and administrative complications encountered in embodying this statutory autonomous function into the corporate structure it seems to be apparent that in many cases the fulfilment of tasks in this position will be entrusted not to staff members of the controller but also to contractors including specialised firms. We believe that it is precisely due to the requirement for a higher level of qualifications which can be met by a team of specialists limited not only to the field of personal data protection and using internal synergies within a specialised firm to achieve enhanced operability, such firm may create conditions for better and more efficient service in this position than a designated staff member. However, to secure seamless cooperation between the controller or processor there should always be a particular person appointed within the team of the DPO contractor that will be in charge of a given controller/processor and act as a responsible person vis-à-vis such controller/processor.
It should be also noted that under the Regulation the DPO should be involved in a timely manner in all issues relating to data protection. The controller/processor should be responsible for such timely involvement. Considering the fact that the GDPR will enter into effect soon, controllers/processors should solve the question of timely DPO's involvement already today.
The Regulation is based on a risk-based approach. Even the DPO institute which takes into account the risk associated with particular processing operations is proposed so as to help achieving one of the main objectives of the Regulation (taking into account the nature, scope, context and purpose of processing) – reducing to minimum the risk of interfering with rights and freedoms of individuals in personal data processing. The GDPR aims at setting the conditions for the performance of the DPO function in a manner guaranteeing a sufficient level of autonomy while providing, at the same time, necessary protection in the fulfilment of specific tasks. Given the difficulty and complexity of data processing operations, the DPO will play a key role in ensuring compliance with data protection legislation. Therefore, the choice of a DPO should be well-considered, as unsuitable setting of a DPO and the consequent wrong solutions and decisions could result in considerable financial or even reputational costs to be incurred by the controllers in the future.
1 Public authority or public entity means all public administration bodies, i.e. state administration bodies and local governments (acting within a particular territory or an interest sphere).
2 Other cases of designation of a DPO include: core activities consist of processing operations that require regular and systematic monitoring of the data subjects on a large scale (Article 37(1)(b) GDPR); or core activities of the controller or the processor consist of processing on a large scale of special categories of personal data and data relating to criminal convictions and offences set out in Article 10 (Article 37(1)(c) GDPR.
3 The current Directive of the European Parliament and of the Council 95/46/EC of 24 October1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.
4 WP29. Guidelines on the Data Protection Officer. 16/CS. WP243 rev.01.
5 Article 24(1) GDPR.
6 E.g. under Article88(1) GDPR Member States may, by law or by collective agreements, provide for more specific rules to ensure the protection of the rights and freedoms in respect of the processing of employees' personal data in the employment context, in particular for the purposes of the recruitment, the performance of the contract of employment, including discharge of obligations laid down by law or by collective agreements, management, planning and organization of work, equality and diversity in the workplace, health and safety at work, protection of employer's or customer's property and for the purposes of the exercise and enjoyment, on an individual or collective basis, of rights and benefits related to employment, and for the purpose of the termination of the employment relationship.
7 You can find a list of all supervisory authorities at: http://ec.europa.eu/justice/data-protection/article-29/structure/data-protection-authorities/index_en.htm .
8 WP29. Guidelines on the Data Protection Officer. 16/CS. WP243 rev.01. 9 E.g. under Art. 35(2) GDPR the controller shall seek the advice of the data protection officer, where designated, when carrying out a data protection impact assessment.
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.