After our previous Q&As on the reformed Italian Data Protection Code (DPC) and those on the draft ePrivacy Regulation, here is our new article summarizing the key highlights of the recent Italian Data Protection Authority's (the Garante) FAQ list on the register of the processing activities for controller and processor from an Italian data protection law perspective.

In fact, although the Garante's FAQ have long been expected by operators, they did not provide much clarity on a number of aspects, nor they introduced particular derogations or simplifications for market players. This is the reason why our Team decided to shed some light on the FAQ and its content in more details.

1. What is the register of the processing activities in the Garante's view?

The register is a summary document containing the main information on the processing of personal data carried out by both the controller and the processor. The aim of the register is to facilitate the assessment and analysis of the risk of each activity of collection, usage and processing of personal data. This broad definition does not change under the Italian DPC, as the Garante has acknowledged the notion of register as set forth under the GDPR.

2. Who shall keep the register according to the Garante?

As for the private sector, the Garante's FAQ indicate that those subjects required to draft and maintain the register of the processing activities shall be as follows:

  1. companies or organizations (including associations, foundations and committees) with at least 250 employees;
  2. companies or organizations (including associations, foundations and committees) with less than 250 employees, that process personal data which:

    1. may present a risk – even if not high – for the rights and freedoms of individuals;
    2. not occasional; or
    3. refer to particular categories of data (e.g., health-related, genetic, biometric data, etc.) or personal data relating to criminal convictions and offenses.

As for the public sector, the same criteria will apply – unless future derogations are introduced on an ad hoc basis.

In any case, the Garante recommends to keep the register always, as this document is useful to track the type of processing performed by each controller and processor and contributes to give substance to the principle of accountability set forth under the GDPR.

3. When is it mandatory to provide the Garante with the register according to the DPC?

The register must be complete in all its mandatory parts according to the GDPR and presented to the Garante only upon request, pursuant to art. 30 GDPR. The controller / processor refusing or failing to fill the register may be subject to administrative fines of up to €10 million, or for undertakings, up to 2 percent of the total annual worldwide turnover (i.e., art. 83 GDPR). In the event the register contains irregular elements from a formal or substantive point of view, the Garante will assess whether and how to intervene during a preliminary investigation phase, also on the basis of evidence of more or less relevant administrative or criminal violations pursuant to the GDPR or the DPC.

4. What does the 250 employees' threshold mean?

The 250 employees' threshold allows controller / processor to derogate from the obligation to keep the register, both in the public and private sector (i.e., art. 30(5) GDPR). In fact, companies and organizations with less than 250 employees can benefit from some simplification measures, as they may not fall under the categories listed under question no. 2 above. In fact, this exemption will apply if the processing carried out by entities with less than 250 employees: (i) does not present specific risks for the rights and freedoms individuals (e.g., automated decision making without human intervention); (ii) is not occasional; or (iii) includes particular categories of personal data or data and data relating to criminal convictions and offenses. It is therefore clear that the 250 employees' threshold is only an apparent "simplification". This because the majority of controller and processors touched by the GDPR are included within the previous cases above and the Garante does not seem to contradict this.

5. What information should be in the register and what information is optional?

Mandatory information to include in the register is exclusively that provided under art. 30, para. 1 and 2, of the GDPR, in particular:

  1. for the controller (art. 30, para. 1, GDPR):

    1. name and contact details of the controller / joint controllers, as well as those of the Data Protection Officer (DPO);
    2. purposes of the processing;
    3. a description of the categories of interested data subjects;
    4. a description of the categories of recipients to which the data can be communicated, thus including those established in extra-EU countries;
    5. indications of international transfers of personal data, also on an extra-EU basis;
    6. retention and deletion periods; and
    7. where and if possible, a general description of the security measures pursuant to art. 32 GDPR.
  2. for the processor (art. 30, para. 1, GDPR):

    1. name and contact details of the processor and of the controller for which it perform the processing;
    2. categories of processing performed;
    3. indications of international transfers of personal data, also on an extra-EU basis;
    4. where and if possible, a general description of the security measures pursuant to art. 32 GDPR.

In addition to the above, any other information that the controller or the processor may consider useful to include in the register (e.g., methods for obtaining consent, possible privacy impact assessments performed, etc.) are not excluded by the GDPR, nor by the Garante. However, it is understood that everything that is extra with respect to the elements mentioned above would only be a "nice to have" with respect to the mandatory elements indicated by the GDPR.

6. Did the Garante make available some template registers?

The Garante has made available templates register for controller and processor that are small and medium-sized companies (available at this link – Italian only). All other controller / processor subject to the obligation to fill the register are free to use the templates they prefer.

7. How should a register be preserved and kept up to date?

In addition to underlining the need for the constant updating of the register, the Garante's FAQ specify that the date of its establishment must be clearly visible on the document, as well as the date of its latest update. In addition, the FAQ specifies that the format of the register can be both paper and electronic. This is also in line with GDPR and recent positions of EU Data Protection Authorities gathered in the Article 29 Working Party (link).

8. Should the original language of the register be Italian?

There is no explicit obligation to fill the register in Italian according to the Garante. However, in the event of an inspection, the language delegated with respect to the compilation of the register shall be Italian. In fact, we do not exclude that the Garante may request a copy of the register translated into Italian in such cases.

9. Did the Garante introduce facilitations for keeping the register of the controller / processor?

In substance no, only the 250 employees' threshold identified in the previous answers could theoretically be a facilitation applicable to entities processing personal data. However, this shall be subject to a case-by-case evaluation. In fact, we note that the FAQ did not introduce specific derogations in this regard.

The article was co-authored by Francesco Armaroli and Valeria Schiavo

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