Article 38 📖 GDPR. Position of the data protection officer

Article 38 GDPR. 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.

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.

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.

General Data Protection Regulation (EU GDPR)

The latest consolidated version of the Regulation with corrections by Corrigendum, OJ L 127, 23.5.2018, p. 2 ((EU) 2016/679). Source: EUR-lex.

Explanation Recitals Guidelines & Case Law Leave a comment

Explanation

Article 38 describes the specifics of the position of the Data Protection Officer (DPO). In particular, the emphasis is on the fact that DPO performs its work independently, while the responsibility for their timely and quality performance lies partly with the company itself (the controller or processor). Therefore, the text emphasizes that the company provides DPO with the necessary resources and access on the one hand, and is responsible for the independence of the DPO, not having the right to give them any instructions on the other.

In order to provide DPO with support, the company is recommended to ensure the following:

DPO is actively and timely involved in all data protection issues; DPO is invited to participate regularly in senior and middle management meetings when decisions with data protection implications are being made;
DPO reports to the top management of your organization, i.e. the board of directors;
DPO acts independently and is not dismissed or penalized for performing their duties;
DPO’s opinion must always be given due weight. In the event of disagreement, it is recommended to document the reasons for failure to implement the recommendations of DPO;
you (controller or processor) provide sufficient resources (time, financial resources, infrastructure and, if necessary, personnel) to enable DPO to fulfil its obligations under the GDPR and maintain an expert level of knowledge;
you (controller or processor) provide DPO with appropriate timely access to personal data and processing to enable them to provide adequate advice;
you (controller or processor) give DPO appropriate access to other services in your organization so that they can get the support, help, or information they need;
you (controller or processor) seek advice from your DPO when conducting a Data Protection Impact Assessment (DPIA) and you will consult DPO immediately in the event of a data breach or other incident;
you (controller or processor) enter data about your DPO in your register of processing operations (Article 30 GDPR).

The DPO themselves also has the burden of professional secrecy (can be compared to confidentiality burden of a doctor or a lawyer), due to the potentially sensitive nature of the information they work with. For example, the DPO has no right to disclose information about potential violations (unless the breach is confirmed and is notifiable to the authorities and/or data subjects).

Also, this article, along with the 37th, once again highlights the importance of avoiding conflict of interest in case DPO performs other tasks in the company. It is due to importance of avoiding conflict of interest that the most advantageous solution is often to outsource the role of DPO. This is relevant, for example, for small companies where the need for DPO is obvious due to the nature or volume of personal data processing (see article 37), but at the same time there are no resources to hire another employee and it is not possible to appoint a DPO from the existing employees, because of a conflict of interest.

For example, the head of marketing department is responsible for planning advertising campaigns, including such solutions as: who of the company’s clients to focus on, which way of communication and personal data to use. This person cannot be the company’s DPO, as decision-making can lead to a conflict of interest between campaign objectives and the company’s data protection obligations.
On the other hand, a public authority may appoint its current record-keeping manager as a DPO. There is no conflict of interest here, as these roles are not related to making decisions about the processing purposes.

Author

Maria Arnst CIPM, TÜV

GDPR Consultant

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Recitals

(97) Where the processing is carried out by a public authority, except for courts or independent judicial authorities when acting in their judicial capacity, where, in the private sector, processing is carried out by a controller whose core activities consist of processing operations that require regular and systematic monitoring of the data subjects on a large scale, or where the core activities of the controller or the processor consist of processing on a large scale of special categories of personal data and data relating to criminal convictions and offences, a person with expert knowledge of data protection law and practices should assist the controller or processor to monitor internal compliance with this Regulation. In the private sector, the core activities of a controller relate to its primary activities and do not relate to the processing of personal data as ancillary activities. The necessary level of expert knowledge should be determined in particular according to the data processing operations carried out and the protection required for the personal data processed by the controller or the processor. Such data protection officers, whether or not they are an employee of the controller, should be in a position to perform their duties and tasks in an independent manner.

Guidelines & Case Law

Document

Article 29 Working Party, Guidelines on Data Protection Officers (DPOs) (2017).