Article 39 📖 GDPR. Tasks of the data protection officer| GDPR-Text.com

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;

WP29 opinion on data processing at work

Where the word “employee” is used in this Opinion, WP29 does not intend to restrict the scope of this term merely to persons with an employment contract recognized as such under applicable labour laws. Over the past decades, new business models served by different types of labour relationships, and in particular employment on a freelance basis, have become more commonplace. This Opinion is intended to cover all situations where there is an employment relationship, regardless of whether this relationship is based on an employment contract.

(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;

ISO 27701 Related

ISO 27701

ISO/IEC 27701, adopted in 2019, added a requirement additional to ISO/IEC 27002, section 7.2.2.

Here is the relevant paragraphs to article 39(1)(b) GDPR:

6.4.2.2 Information security awareness, education and training

Implementation guidance

Measures should be put in place, including awareness of incident reporting, to ensure that relevant staff are aware of the possible consequences to the organization (e.g. legal consequences, loss of business and brand or reputational damage), to the staff member (e.g. disciplinary consequences) and to the PII principal (e.g. physical, material and emotional consequences) of breaching privacy or security rules and procedures, especially those addressing the handling of PII.

NOTE Such measures can include the use of appropriate periodic training for personnel having access to PII.

Guidelines on Data Protection Officers (‘DPOs’)

4.1. Monitoring compliance with the GDPR

As part of these duties to monitor compliance, DPOs may, in particular:

• collect information to identify processing activities

• analyse and check the compliance of processing activities

• inform, advise and issue recommendations to the controller or the processor.

Monitoring of compliance does not mean that it is the DPO who is personally responsible where there is an instance of non-compliance. The GDPR makes it clear that it is the controller, not the DPO, who is required to ‘implement appropriate technical and organisational measures to ensure and to be able to demonstrate that processing is performed in accordance with this Regulation’ (Article 24(1)). Data protection compliance is a corporate responsibility of the data controller, not of the DPO.

(c) to provide advice where requested as regards the data protection impact assessment and monitor its performance pursuant to Article 35;

Article 35 GDPR. Data protection impact assessment

Guidelines on Data Protection Officers (‘DPOs’)

4.2. Role of the DPO in a data protection impact assessment

The WP29 recommends that the controller should seek the advice of the DPO, on the following issues, amongst others [35]:

_{[35] Article 39(1) mentions the tasks of the DPO and indicates that the DPO shall have ‘at least’ the following tasks. Therefore, nothing prevents the controller from assigning the DPO other tasks than those explicitly mentioned in Article 39(1), or specifying those tasks in more detail.}

• whether or not to carry out a DPIA

• what methodology to follow when carrying out a DPIA

• whether to carry out the DPIA in-house or whether to outsource it

• what safeguards (including technical and organisational measures) to apply to mitigate any risks to the rights and interests of the data subjects

• whether or not the data protection impact assessment has been correctly carried out and whether its conclusions (whether or not to go ahead with the processing and what safeguards to apply) are in compliance with the GDPR.

If the controller disagrees with the advice provided by the DPO, the DPIA documentation should specifically justify in writing why the advice has not been taken into account [36].

(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.

Article 36 GDPR. Prior consultation

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 4/2019 on Article 25 Data Protection by Design and by Default Version 2.0.

2.1.3.3 “nature, scope, context and purpose of processing”

28. In short, the concept of nature can be understood as the inherent[11] characteristics of the processing. The scope refers to the size and range of the processing. The context relates to the circumstances of the processing, which may influence the expectations of the data subject, while the purpose pertains to the aims of the processing.

_{[11] Examples are special categories personal data, automatic decision-making, skewed power relations, unpredictable processing, difficulties for the data subject to exercise the rights, etc.}

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.

Expert commentary ISO 27701 Guidelines & Case Law Leave a comment

Expert commentary

Article 39 lists the main (but not all) tasks that fall under the remit of the Data Protection Officer (DPO). Among them, there are three main functions (although DPO competences are not necessarily limited to them):

Consulting (39.1a, c),
Control / monitoring (39.1b),
Relationship with the supervising authorities (39.1d, e).

1. The consulting function means that the DPO provides information and explanations about the GDPR and its compliance to the controller and processor as well as to the employees of the controller and processor who are involved in the processing of personal data. In particular the role of DPO is important in the context of Data Protection Impact Assessment (DPIA), because DPO advises and monitors its implementation according to Article 35 of the GDPR. WP29 recommends that the controller seeks the advice of the DPO, e.g. on the following issues:

whether or not to conduct a DPIA

[…]

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 39 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).

[…]

Guidelines & Case Law

Document

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