A DPO (Data Protection Officer) is an individual responsible for ensuring that their organisation is processing the data of its staff, customers, providers and any other individuals, i.e. data subjects, in compliance with data protection regulations. As of the EU-wide General Data Protection Regulation (GDPR), a DPO is mandatory for:
- Public authorities; and
- Organisations that process data
- On a large scale;
- With regular and systematic monitoring;
- As a core activity; or
- In large volumes of ‘special category data,’ formerly known as ‘sensitive personal data,’ i.e. information related to a living individual’s racial or ethnic origin, political opinions, religious beliefs, trade union membership, physical or mental health condition, sex life or sexual orientation, or biometric data.
It may not be immediately obvious whether an organisation must have a designated DPO under GDPR. If so, it is necessary to make a formal evaluation, recording the decision and the reasons behind it. The WP29 Guidelines on Data Protection Officers (‘DPO’), endorsed by the European Data Protection Board (EDBP), recommends that organisations should conduct and document an internal analysis to determine whether or not a DPO should be appointed. Ultimately, such decision-making should always take into account the organisation’s obligation to fulfil the rights of the data subject, the primary concern of the GDPR: does the scale, volume or type of data processing in your organisation risk adversely effecting an individual or the wider public?
Even if a DPO is not legally required, organisations may benefit from voluntarily appointing an internal DPO or hiring an advisor – this will ensure best-practice data protection policies and practices, improving cyber security, staff and consumer trust, and other business benefits. When a DPO is designated voluntarily, they will be considered as mandatory under GDPR – i.e. the voluntarily appointed DPO’s responsibilities as defined in articles 37 and 39 of the GDPR will correspond to those of a legally mandated DPO (in other words, GDPR does not recognise a quasi-DPO with reduced responsibility). As an excerpt from the GDPR explains “if an organisation is not legally required to designate a DPO, and does not wish to designate a DPO on a voluntary basis, that organisation is quite at liberty to employ staff or outside consultants to provide information and advice relating to the protection of personal data.
However, it is important to ensure that there is no confusion regarding their title, status, position and tasks. Therefore, it should be made clear, in any communications within the company, as well as with data protection authorities, data subjects, and the public at large, that the title of this individual or consultant is not a data protection officer (DPO).”
But how are the conditions that make a DPO mandatory defined under GDPR?
Large-scale processing: there is no absolute definition under GDPR, but there are evaluative guidelines. The GDPR’s WP29 guidance suggests data controllers should consider:
- The number of data subjects concerned;
- The volume of data processed;
- The range of data items being processed;
- The duration or permanence of the data processing activity; and
- The geographical extent.
Regular and systematic monitoring: as with ‘large-scale processing,’ there is no definition as such, but WP29 guidance clarifies that monitoring involves any form of tracking or profiling on the internet, including for the purposes of behavioural advertising. Here are a number of examples of regular and systematic monitoring:
- Data-driven marketing activities;
- Profiling and scoring for purposes of risk assessment;
- Email retargeting;
- Location tracking (e.g. by mobile apps); or
- Loyalty programmes.
What does a Data Protection Officer do?
Article 39 of the GDPR, ‘Tasks of the data protection officer,’ lists and explains the DPO’s obligations. It explains that, as a minimum, the responsibility of a DPO is the items summarised below:
- Inform and advise the controller or the processor and the employees
- Monitor compliance with the Regulation, with other Union or Member State data protection provisions and with the policies of the controller or processor in relation to the protection of personal data, including the assignment of responsibilities, awareness-raising and training of staff involved in processing operations, and the related audits
- Provide advice as regards data protection impact assessments and monitor performance
- Cooperate with the supervisory authority
- Act as the contact point for the supervisory authority on issues relating to data processing
Harry Smithson 2019