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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.

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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.

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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.

ISO 27701

ISO/IEC 27701, adopted in 2019, added a requirement additional to ISO/IEC 27002, section 13.2.4.

Here is the relevant paragraph to article 5(1)(f) GDPR:

6.10.2.4 Confidentiality or non-disclosure agreements

Implementation guidance

The organization should ensure that individuals operating under its control with access to PII are subject to a confidentiality obligation. The confidentiality agreement, whether part of a contract or separate, should specify the length of time the obligations should be adhered to.

 

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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.

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Expert commentary ISO 27701 Recitals Guidelines & Case Law Leave a comment
Expert commentary

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

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to read the full text

ISO 27701

ISO/IEC 27701, adopted in 2019, added a requirement additional to ISO/IEC 27002, section 6.1.1.

Here is the relevant paragraph to article 38 GDPR:

6.3.1.1 Information security roles and responsibilities

Implementation guidance

The organization should designate a point of contact for use by the customer regarding the processing of PII. When the organization is a PII controller, designate a point of contact for PII principals regarding the processing of their PII (see 7.3.2).

[…]


to read the full text

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 Leave a comment
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