GDPR requires data controllers and processors to designate a DPO in any case where:
• the processing is carried out by a public authority or body;
• the ‘core activities’ of the controller/processor consist of processing operations which ‘require regular and systematic monitoring of data subjects on a large scale’; or
• the core activities of the controller/processor consist of processing on a large scale of ‘special categories of data’ or personal data relating to criminal convictions and offences.
While the public sector is covered by the first requirement, the vast majority of private sector companies will not be required to appoint a DPO. Most private companies do not engage in systematic monitoring as a core activity and, to the extent that they process health, convictions or other sensitive/special categories of data, they do so in a manner that is incidental to their business, typically in the ordinary course of personnel administration.
It is recommended that controllers and processors document the internal analysis carried out to determine whether or not a DPO is to be appointed in order to demonstrate that the relevant factors have been taken into account properly.
If you decide to voluntarily appoint a DPO, you must ensure you appoint a person who is adequately trained, resourced and has ‘expert knowledge of data protection law and practices’ and on the basis of their ‘professional qualities’.
The level of expertise ‘must be commensurate with the sensitivity, complexity and amount of data an organisation processes’ and that prospective DPOs ‘should have expertise in national and European data protection laws and practices and an in-depth understanding of the GDPR.’
The DPO role differs from most employees or contractors in that it is statutorily independent and protected. DPOs must be independent, avoid conflicts of interest and they cannot receive instruction regarding the performance of their tasks. GDPR provides DPOs with protected employment status, meaning that organisations cannot dismiss or sanction DPOs for performing their tasks.
So while an organisation might initially lean towards voluntarily appointing a DPO, they may well re-think the decision when they consider the organisational and employment law implications.
GDPR makes it clear that a DPO can be an employee or a contractor.
Given that the role of a DPO includes being ‘involved properly and in a timely manner, in all issues which relate to the protection of personal data’ outsourcing may require some significant external consultation in the beginning as GDPR guidelines suggest that controllers and processors should develop data protection guidelines or programmes setting out when the DPO must be consulted.
Further, the DPO must have a reporting line into the ‘highest management level’ of the controller/processor which would not be something typically associated with external contractors.
For those who are clearly subject to a mandatory DPO appointment, now is the time to identify appropriate candidates and to develop a governance structure which will work for their organisations. However, for the majority of entities who are not subject to mandatory appointments, consider if GDPR compliance can be achieved without a formal appointment and whether this represents a better fit for their businesses.
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