Guidelines on Data Protection Officers (‘DPOs’)

2.1.1 ‘PUBLIC AUTHORITY OR BODY’

The GDPR does not define what constitutes a ‘public authority or body’. The WP29 considers that such a notion is to be determined under national law. Accordingly, public authorities and bodies include national, regional and local authorities, but the concept, under the applicable national laws, typically also includes a range of other bodies governed by public law [12]. In such cases, the designation of a DPO is mandatory.

_{[12] See, e.g. the definition of ‘public sector body’ and ‘body governed by public law’ in Article 2(1) and (2) of Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public-sector information (OJ L 345, 31.12.2003, p. 90).}

A public task may be carried out, and public authority may be exercised [13] not only by public authorities or bodies but also by other natural or legal persons governed by public or private law, in sectors such as, according to national regulation of each Member State, public transport services, water and energy supply, road infrastructure, public service broadcasting, public housing or disciplinary bodies for regulated professions.

_{[13] Article 6(1)(e).}

Guidelines on Data Protection Officers (‘DPOs’)

3. What does ‘large scale’ mean?

The GDPR does not define what constitutes large-scale processing. The WP29 recommends that the following factors, in particular, be considered when determining whether the processing is carried out on a large scale:

• the number of data subjects concerned – either as a specific number or as a proportion of the relevant population

• the volume of data and/or the range of different data items being processed

• the duration, or permanence, of the data processing activity

• the geographical extent of the processing activity.

Examples of large scale processing include:

• processing of patient data in the regular course of business by a hospital

• processing of travel data of individuals using a city’s public transport system (e.g. tracking via travel cards)

• processing of real time geo-location data of customers of an international fast food chain for statistical purposes by a processor specialised in these activities

• processing of customer data in the regular course of business by an insurance company or a bank

• processing of personal data for behavioural advertising by a search engine

• processing of data (content, traffic, location) by telephone or internet service providers.

Examples that do not constitute large-scale processing include:

• processing of patient data by an individual physician

• processing of personal data relating to criminal convictions and offences by an individual lawyer.

Guidelines on Data Protection Officers (‘DPOs’)

2.1.2 ‘CORE ACTIVITIES’

Article 37(1)(b) and (c) of the GDPR refers to the ‘core activities of the controller or processor’. Recital 97 specifies that the core activities of a controller relate to ‘primary activities and do not relate to the processing of personal data as ancillary activities’. ‘Core activities’ can be considered as the key operations necessary to achieve the controller’s or processor’s goals.

However, ‘core activities’ should not be interpreted as excluding activities where the processing of data forms an inextricable part of the controller’s or processor’s activity. For example, the core activity of a hospital is to provide health care. However, a hospital could not provide healthcare safely and effectively without processing health data, such as patients’ health records. Therefore, processing these data should be considered to be one of any hospital’s core activities and hospitals must therefore designate DPOs.

2.1.4 ‘REGULAR AND SYSTEMATIC MONITORING’

WP29 interprets ‘regular’ as meaning one or more of the following:

• ongoing or occurring at particular intervals for a particular period

• recurring or repeated at fixed times

• constantly or periodically taking place.

WP29 interprets ‘systematic’ as meaning one or more of the following:

• occurring according to a system

• pre-arranged, organised or methodical

• taking place as part of a general plan for data collection

• carried out as part of a strategy.

Article 9 GDPR. Processing of special categories of personal data

1. Processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation shall be prohibited.

2. Paragraph 1 shall not apply if one of the following applies:

(a) the data subject has given explicit consent to the processing of those personal data for one or more specified purposes, except where Union or Member State law provide that the prohibition referred to in paragraph 1 may not be lifted by the data subject;

[…]

Article 10 GDPR. Processing of personal data relating to criminal convictions and offences

Processing of personal data relating to criminal convictions and offences or related security measures based on Article 6(1) shall be carried out only under the control of official authority or when the processing is authorised by Union or Member State law providing for appropriate safeguards for the rights and freedoms of data subjects. Any comprehensive register of criminal convictions shall be kept only under the control of official authority.

Guidelines on Data Protection Officers (‘DPOs’)

The GDPR does not define what constitutes large-scale processing. The WP29 recommends that the following factors, in particular, be considered when determining whether the processing is carried out on a large scale:

• the number of data subjects concerned – either as a specific number or as a proportion of the relevant population

• the volume of data and/or the range of different data items being processed

• the duration, or permanence, of the data processing activity

• the geographical extent of the processing activity.

Examples of large scale processing include:

• processing of patient data in the regular course of business by a hospital

• processing of travel data of individuals using a city’s public transport system (e.g. tracking via travel cards)

• processing of real time geo-location data of customers of an international fast food chain for statistical purposes by a processor specialised in these activities

• processing of customer data in the regular course of business by an insurance company or a bank

• processing of personal data for behavioural advertising by a search engine

• processing of data (content, traffic, location) by telephone or internet service providers.

Examples that do not constitute large-scale processing include:

• processing of patient data by an individual physician

• processing of personal data relating to criminal convictions and offences by an individual lawyer.

Guidelines on Data Protection Officers (‘DPOs’)

2.1.2 ‘CORE ACTIVITIES’

Article 37(1)(b) and (c) of the GDPR refers to the ‘core activities of the controller or processor’. Recital 97 specifies that the core activities of a controller relate to ‘primary activities and do not relate to the processing of personal data as ancillary activities’. ‘Core activities’ can be considered as the key operations necessary to achieve the controller’s or processor’s goals.

However, ‘core activities’ should not be interpreted as excluding activities where the processing of data forms an inextricable part of the controller’s or processor’s activity. For example, the core activity of a hospital is to provide health care. However, a hospital could not provide healthcare safely and effectively without processing health data, such as patients’ health records. Therefore, processing these data should be considered to be one of any hospital’s core activities and hospitals must therefore designate DPOs.

Article 29 Working Party Guidelines on transparency under Regulation 2016/679

The “easily accessible” element means that the data subject should not have to seek out the information; it should be immediately apparent to them where and how this information can be accessed, for example by providing it directly to them, by linking them to it, by clearly signposting it or as an answer to a natural language question (for example in an online layered privacy statement/ notice, in FAQs, by way of contextual pop-ups which activate when a data subject fills in an online form, or in an interactive digital context through a chatbot interface, etc. These mechanisms are further considered below, including at paragraphs 33 to 40).

Guidelines 3/2018 on the territorial scope of the GDPR (Article 3)

“An establishment in the Union”

The threshold for “stable arrangement [9]” can actually be quite low when the centre of activities of a controller concerns the provision of services online. As a result, in some circumstances, the presence of one single employee or agent of a non-EU entity in the Union may be sufficient to constitute a stable arrangement (amounting to an ‘establishment’ for the purposes of Art 3(1)) if that employee or agent acts with a sufficient degree of stability. Conversely, when an employee is based in the EU but the processing is not being carried out in the context of the activities of the EU-based employee in the Union (i.e. the processing relates to activities of the controller outside the EU), the mere presence of an employee in the EU will not result in that processing falling within the scope of the GDPR. In other words, the mere presence of an employee in the EU is not as such sufficient to trigger the application of the GDPR, since for the processing in question to fall within the scope of the GDPR, it must also be carried out in the context of the activities of the EU-based employee.

_{[9] Weltimmo, paragraph 31.}

The fact that the non-EU entity responsible for the data processing does not have a branch or subsidiary in a Member State does not preclude it from having an establishment there within the meaning of EU data protection law. Although the notion of establishment is broad, it is not without limits. It is not possible to conclude that the non-EU entity has an establishment in the Union merely because the undertaking’s website is accessible in the Union [10].

_{[10] CJEU, Verein für Konsumenteninformation v. Amazon EU Sarl, Case C‑191/15, 28 July 2016, paragraph 76 (hereafter “Verein für Konsumenteninformation”).}

Guidelines on Data Protection Officers (‘DPOs’)

2.3. Designation of a single DPO for several organisations

Article 37(2) allows a group of undertakings to designate a single DPO provided that he or she is ‘easily accessible from each establishment’. The notion of accessibility refers to the tasks of the DPO as a contact point with respect to data subjects [19], the supervisory authority [20] but also internally within the organisation, considering that one of the tasks of the DPO is ‘to inform and advise the controller and the processor and the employees who carry out processing of their obligations pursuant to this Regulation’ [21].

_{[19] Article 38(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’.}

_{[20] Article 39(1)(e): ‘act as a 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’.}

_{[21] Article 39(1)(a).}

In order to ensure that the DPO, whether internal or external, is accessible it is important to make sure that their contact details are available in accordance with the requirements of the GDPR [22].

_{[22] See also Section 2.6 below.}

He or she, with the help of a team if necessary, must be in a position to efficiently communicate with data subjects [23] and cooperate [24] with the supervisory authorities concerned. This also means that this communication must take place in the language or languages used by the supervisory authorities and the data subjects concerned. The availability of a DPO (whether physically on the same premises as employees, via a hotline or other secure means of communication) is essential to ensure that data subjects will be able to contact the DPO.

_{[23] Article 12(1): ’The controller shall take appropriate measures to provide any information referred to in Articles 13 and 14 and any communication under Articles 15 to 22 and 34 relating to processing to the data subject in a concise, transparent, intelligible and easily accessible form, using clear and plain language, in particular for any information addressed specifically to a child’.}

_{[24] Article 39(1)(d) : ‘to cooperate with the supervisory authority’}

Guidelines on Data Protection Officers (‘DPOs’)

2.1.1 ‘PUBLIC AUTHORITY OR BODY’

The GDPR does not define what constitutes a ‘public authority or body’. The WP29 considers that such a notion is to be determined under national law. Accordingly, public authorities and bodies include national, regional and local authorities, but the concept, under the applicable national laws, typically also includes a range of other bodies governed by public law [12]. In such cases, the designation of a DPO is mandatory.

_{[12] See, e.g. the definition of ‘public sector body’ and ‘body governed by public law’ in Article 2(1) and (2) of Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public-sector information (OJ L 345, 31.12.2003, p. 90).}

A public task may be carried out, and public authority may be exercised [13] not only by public authorities or bodies but also by other natural or legal persons governed by public or private law, in sectors such as, according to national regulation of each Member State, public transport services, water and energy supply, road infrastructure, public service broadcasting, public housing or disciplinary bodies for regulated professions.

_{[13] Article 6(1)(e).}

Article 39 GDPR. 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.

Guidelines on Data Protection Officers (‘DPOs’)

8. What are the professional qualities that the DPO should have?

The necessary level of expert knowledge should be determined according to the data processing operations carried out and the protection required for the personal data being processed. For example, where a data processing activity is particularly complex, or where a large amount of sensitive data is involved, the DPO may need a higher level of expertise and support.

Relevant skills and expertise include:

• expertise in national and European data protection laws and practices including an in-depth understanding of the GDPR

• understanding of the processing operations carried out

• understanding of information technologies and data security

• knowledge of the business sector and the organisation

• ability to promote a data protection culture within the organisation.