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The EU General Data Protection Regulation (‘the Regulation’) means that the role of the Data Protection Officer will at long last be given a Pan-European legislative construct.
Current position
There are already many multinationals that have a Chief Privacy Officer or Chief Data Privacy Officer (‘DPO’) and whilst there are a number of EU Member States that specifically reference the role of the DPO there is no harmonised approach at present.
The adoption of new rules relating to Privacy Seals by the French Data Protection Authority (CNIL) stipulates a number of duties to be observed by the DPO and this article will look at examples of the roles and responsibilities of the DPO in Europe and likely additions to those roles once the Regulation comes into force.
Currently some European jurisdictions mandate or legislate for the appointment of the DPO for example Germany, France, Hungary, Slovenia, Russia and Poland.
Where a DPO is appointed they are empowered to ensure that the data controller is compliant with all aspects of applicable data protection laws and regulations, and in some jurisdictions the contact details of the DPO must be registered with the relevant data protection authority (‘DPA’).
In a number of jurisdictions the formal appointment of a DPO negates requirement for notification or registration of the data controller with the relevant DPA on the basis that it is the duty of the DPO to maintain a compliance register and to oversee the management of processing personal data that would have otherwise been covered by a notification or registration process.
DPO responsibilities
Currently one of the first responsibilities of the DPO is to manage notifications or registrations with the relevant data protection authority in respect of the data processing activities of the data controller. Furthermore the DPO must keep such notifications and registrations up-to-date and to maintain separate notifications in respect of all data processing entities within the corporate group.
There are particular obligations placed on DPO’s in respect of notifications and registrations in respect of processing sensitive personal data as well as the international transfer of personal data (and particularly sensitive personal data) and other processing activities such as whistleblower or ethical hotlines.
It must be remembered that in the EU the process of notification and registration is more than a “tick box” exercise and also more than a mere bureaucratic filing formality.
The notification or registration of the data controller with a DPA assists the DPA in its ability to enforce data protection compliance and the DPO needs to be fully informed of all processing activities in order to ensure that faster notifications and registrations are accurate and up-to-date.
In some European jurisdictions data processing cannot occur without prior registration of data processing activities and without prior approval of the relevant DPA. In addition specific notifications fall within the responsibility of the DPO where those notifications relate to whistleblower and ethical hotlines, international transfers of personal data (particularly of a sensitive nature) and notifications of data breaches for cyber incidents. Another general responsibility of the DPO is to monitor the activities of all data controllers within the DPO’s corporate group including HR, sales and marketing, IT, procurement and outsourcing.
The DPO needs to have in place a policy and procedure that ensures liaison with relevant departments in respect of any changes to processing activities – such as HR in relation to staff, leavers, job interviews and recruitment, background checks, new members of staff and the use of agents or sub-contractors.
The DPO is or should be a “C Suite” person who has direct reporting to the management in respect of data privacy and related compliance issues. The DPO shall have the autonomy and related budget and decision-making powers to manage non-compliance and related events including reporting of such incidents to the relevant DPA.
Implementing policies
The DPO needs to implement policies and procedures to manage the outsourcing of data processing activities including the use of third party vendors for HR, IT and marketing and particularly where those third party vendors may be processing personal data of the company outside the European Economic Area and/or within the Cloud.
The DPO needs to maintain close relationships with the Chief Information Security Officer (CISO) in order to manage not only the contractual issues and compliance issues relating to the processing of personal data but also the information security policies and procedures relating to that processing and cyber security planning.
In terms of the development of policies, procedures and practices the DPO needs to:
- Provide guidelines to the Board of Directors as well as