GDPR Series: When Should A DPO Be Appointed?

Author:Mr Rob Corbet
Profession:Arthur Cox

Rob Corbet, Partner at Arthur Cox, clears up some common misconceptions surrounding the GDPR's requirement on appointment of Data Protection Officers

The countdown to GPDR commencement on 25th May 2018 continues and one of the most pressing questions concerning organisations is 'who will be our Data Protection Officer ('DPO')'? The topic has sparked a lot of confusion so it's worth distilling the facts from the fiction so that informed decisions can be made.

Must I appoint a DPO?

Article 37(1) 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.

In cases where there could be a debate as to whether or not any of the three criteria apply, the Article 29 Working Party Guidelines on DPOs, first issued in December 2016 and revised in April 2017, ('the Guidelines') recommend 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.

Should I appoint a DPO anyway?

While many organisations will escape the requirements of Article 37(1), they might well already have a person performing the DPO role, or they might be considering appointing someone given the depth of work required to meet GDPR standards and to 'demonstrate' compliance as required by Article 5(2).

It is worth briefly pausing before taking this step. According to the Guidelines, the requirements under Articles 37 to 39 of the GDPR will apply equally to voluntary and mandatory DPOs in relation to their designation, position and tasks. This is...

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