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GDPR: The DPO, a mole inside your company?

The General Data Protection Regulation (“GDPR”) introduces a new important role in the data protection scheme: the so-called Data Protection Officer (“DPO”). The DPO will become indispensable for quite a lot of companies and will play an essential role in ensuring compliance with data protection law.

Appointing a DPO is mandatory for entities acting as a data controller or data processor if (i) the processing is carried out by a public authority or body, except for courts acting in their judicial capacity; (ii) the core activities consist of processing operations that require regular and systematic large-scale monitoring of data subjects, e.g., businesses engaging in profiling or tracking online behaviour; or (iii) the core activities consist of large-scale processing of sensitive categories of data, e.g., the activities of hospitals or biomedical companies that process health data or activities of institutions that process information relating to criminal convictions. Furthermore, appointing a DPO may also be an obligation imposed by national Member State law, which Germany has already done.

The DPO will become a key figure in protecting personal data for the company and will assume extensive duties and responsibilities. These include monitoring compliance with data protection regulations and the companies’ policies on them by assigning responsibilities to others within the company, raising data protection awareness, training staff, carrying out compliance audits and providing information and advice to the data controller, data processor, or employees who are involved in the data processing of their respective obligations under data protection law. The DPO also advises the company on the risks of certain data processing activities in the framework of the data protection impact assessment. Finally, the DPO is also responsible for cooperating with the supervisory authorities, and it acts as the main point of contact for data subjects and those authorities.

Data controllers and processors have certain obligations towards the DPO as well. They must designate a DPO who possesses the right professional qualities and expert knowledge of data protection law (i.e., the GDPR or other applicable EU or Member State data protection law) and practices. It is allowed to appoint only one DPO for a group of undertakings, provided that he or she is easily accessible from every establishment of the group. The DPO can be an internal staff member or an external person who performs the tasks under a service contract with the company. But either way, the data controller or processor must ensure that the DPO appointed is able to carry out his or her duties independently, that the DPO is not instructed by anyone, and that he or she report directly to the highest level of management within the company. Moreover, the DPO may not be dismissed or penalised solely on grounds of his or her task performances. This does not, however, prevent him or her from being appointed for a fixed term or with the possibility of dismissal with termination notice, and it does not affect the application of local employment law. In addition, the data controller and processor must involve the DPO in all data protection issues properly and timely and provide him or her with the necessary resources so that he or she can fulfil his or her tasks and keep his or her expert knowledge up to date.

The mandatory and rightful appointment of a DPO should not be underestimated. It is because non- compliance with any of the above obligations and rules can cause the company to be fined up to €10 million or 2% of its total worldwide annual turnover, whichever is higher. Even if appointing a DPO is not mandatory, businesses should still consider appointing one voluntarily because doing so is an effective and efficient way to meet burdensome data protection compliance obligations under the GPDR, such as the obligation to keep records of all processing activities and the obligation of carrying out a data protection impact assessment and/or prior consultation of the supervisory authority in certain circumstances.

Even though the role of the DPO and the extent to which he or she will gain access to business information might seem quite invasive to the company, having a DPO is an important step in achieving compliance with data protection law and ensuring the company’s accountability required under the GDPR. In any event, the DPO will be bound by the obligation of secrecy or confidentiality concerning the performance of his or her tasks. For the sake of completeness, the GDPR does not oblige the DPO to report any failure to comply with data protection obligations to the supervisory authorities. In conclusion, the DPO should not be considered a mole inside your company or a “necessary evil”, but rather a valuable, helpful, and promising asset to the company.

Compliments of Stibbe – a member of the EACCNY