Here we try to clarify the legislation and things to consider regarding the appointment of Data Protection Officers. If you have any questions please get in touch
Do we need to appoint a Data Protection Officer?
Appointing a Data Protection Officer (DPO) is not mandatory for all organisations, but all organisations are encouraged to at least consider the option of appointing a DPO. Having a DPO demonstrates a commitment to protecting personal data but should also help organisations remain compliant. If you decide not to appoint a DPO then you should clearly document your rationale for this decision. The ICO says “Regardless of whether the GDPR obliges you to appoint a DPO, you must ensure that your organisation has sufficient staff and resources to discharge your obligations under the GDPR. However, a DPO can help you operate within the law by advising and helping to monitor compliance. In this way, a DPO can be seen to play a key role in your organisation’s data protection governance structure and to help improve accountability.”
The GDPR states that a Data Protection Officer must be appointed:
If the processing is carried out by a public authority or body, except for courts acting in their judicial capacity; So, for example, all local authorities are obliged to appoint a DPO
If 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; for example companies working in the data sector, social media companies etc., where they are monitoring a large number of individuals (and this will also include for example the use of CCTV)
If the core activities of the controller or the processor consist of processing on a large scale of special categories of data pursuant to Article 9 or personal data relating to criminal convictions and offences referred to in Article 10.
The following types of data are defined as ‘special categories of data’ under Article 9 of the GDPR:
personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership
genetic data, biometric data for the purpose of uniquely identifying a natural person
data concerning health, data concerning a natural person's sex life or sexual orientation
There is no definition of ‘large scale’ in the legislation though the ICO advises that “processing may be on a large scale where it involves a wide range or large volume of personal data, where it takes place over a large geographical area, where a large number of people are affected, or it is extensive or has long-lasting effects”. So, it’s likely that most GP surgeries, all hospitals and many companies in the healthcare sector, companies with a very large number of employees, companies using ID verification in large numbers,, trade unions etc. will be required to appoint a DPO.
Who can be our DPO?
Many people underestimate the importance of the DPO role and the extensive duties and responsibilities that go with the role.
The GDPR states that the DPO “shall be designated on the basis of professional qualities and, in particular, expert knowledge of data protection law and practices and the ability to fulfil the tasks referred to in Article 39” (see below re tasks of the DPO).
Organisations can appoint a member of staff as their DPO provided they meet the criteria and importantly, provided there is no conflict with their other duties. For example, employees who decide or have influence over the means or manner of processing of personal data cannot be appointed as DPO.
Many companies choose to outsource their DPO to ensure independence and to ensure that they are getting the right level of expertise and experience. Often the role will be part-time and partly conducted remotely, but DPO’s must have direct access to senior management and must gain a full understanding of the company’s processing activities, and this is unlikely to be possible without visiting the company’s premises and engaging with employees. Article 38 for example states that “The controller and the processor shall ensure that the data protection officer is involved, properly and in a timely manner, in all issues which relate to the protection of personal data.” Data Protection Officers should also provide or ensure training for all staff involved in processing activities.
What does the DPO actually do?
The GDPR states that:
“The data protection officer shall have at least the following tasks:
to inform and advise the controller or the processor and the employees who carry out processing of their obligations pursuant to this Regulation and to other Union or Member State data protection provisions;
to monitor compliance with this 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;
to provide advice where requested as regards the data protection impact assessment and monitor its performance pursuant to Article 35;
to cooperate with the supervisory authority;
to act as the contact point for the supervisory authority on issues relating to processing, including the prior consultation referred to in Article 36, and to consult, where appropriate, with regard to any other matter.”
..and further states that “The data protection officer shall in the performance of his or her tasks have due regard to the risk associated with processing operations, taking into account the nature, scope, context and purposes of processing.”
In terms of the DPO role there are various considerations for organisations to take into account.
What do we have to do to support the DPO?
You must ensure that:
the DPO is involved, closely and in a timely manner, in all data protection matters;
the DPO reports to the highest management level of your organisation, i.e. board level;
the DPO operates independently and is not dismissed or penalised for performing their tasks;
you provide adequate resources (sufficient time, financial, infrastructure, and, where appropriate, staff) to enable the DPO to meet their GDPR obligations, and to maintain their expert level of knowledge;
you give the DPO appropriate access to personal data and processing activities;
you give the DPO appropriate access to other services within your organisation so that they can receive essential support, input or information;
you seek the advice of your DPO when carrying out a DPIA; and
you record the details of your DPO as part of your records of processing activities.
This demonstrates the importance of the DPO role to your organisation and shows that you must provide sufficient support so they can carry out their role independently. There is a requirement for your DPO to report to the highest level of management and must have direct access at board level in order to give advice so that senior management can make informed decisions in regard to data protection and processing.
Finally, a few FAQ’s
Will Brexit affect the requirement for a Data Protection Officer?
No, the rules will remain the same after the Brexit process is completed as the GDPR will be incorporated into UK law (with some minor changes) under the European Union (Withdrawal) Act 2018
Can we have more than one DPO?
No, an organisation can only have one named Data Protection Officer, though of course you can have other data protection staff to support the DPO
Can someone be DPO for more than one organisation?
Yes, a DPO can work for more than one organisation and this will often be the case with outsourced DPOs. Obviously a DPO has a duty of confidentiality and this should be included in any contract with your DPO
Can we outsource our DPO?
Yes, you can, and in many ways this is a good way to demonstrate independence and avoid any conflict of interest. However, a DPO can be an existing member of staff so long as they have the right level of expertise and are not involved in making decisions concerning the processing of personal data. If you are thinking of appointing a DPO please contact us for an initial chat
Is it the responsibility of the DPO to make sure we are compliant with the legislation?
No, the organisation (whether you are a controller or a processor) is responsible for ensuring you are compliant, although clearly the DPO will be highly involved in helping you become and remain compliant
If you would like to discuss our Data Protection Officer services or indeed any issues relating to data protection, please drop us an email, give us a call or use the contact form here
Nick Richards CIPP/E September 2020
For reference, the relevant Articles in the GDPR are given below:
Article 38
Position of the data protection officer
1. The controller and the processor shall ensure that the data protection officer is involved, properly and in a timely manner, in all issues which relate to the protection of personal data.
2. The controller and processor shall support the data protection officer in performing the tasks referred to in Article 39 by providing resources necessary to carry out those tasks and access to personal data and processing operations, and to maintain his or her expert knowledge.
3. The controller and processor shall ensure that the data protection officer does not receive any instructions regarding the exercise of those tasks. He or she shall not be dismissed or penalised by the controller or the processor for performing his tasks. The data protection officer shall directly report to the highest management level of the controller or the processor.
4. Data subjects may contact the data protection officer with regard to all issues related to processing of their personal data and to the exercise of their rights under this Regulation.
5. The data protection officer shall be bound by secrecy or confidentiality concerning the performance of his or her tasks, in accordance with Union or Member State law.
6. The data protection officer may fulfil other tasks and duties. The controller or processor shall ensure that any such tasks and duties do not result in a conflict of interests.
Article 39
Tasks of the data protection officer
1. The data protection officer shall have at least the following tasks:
(a) to inform and advise the controller or the processor and the employees who carry out processing of their obligations pursuant to this Regulation and to other Union or Member State data protection provisions;
(b) to monitor compliance with this 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;
(c) to provide advice where requested as regards the data protection impact assessment and monitor its performance pursuant to Article 35;
(d) to cooperate with the supervisory authority;
(e) to act as the contact point for the supervisory authority on issues relating to processing, including the prior consultation referred to in Article 36, and to consult, where appropriate, with regard to any other matter.
2. The data protection officer shall in the performance of his or her tasks have due regard to the risk associated with processing operations, taking into account the nature, scope, context and purposes of processing.