|1||37.||Article 37||GDPR 37|
|2||37.||Designation of the data protection officer||GDPR 37|
|3||37.1||1. The controller and the processor shall designate a data protection officer in any case where:||GDPR 37|
|4||37.1(a)||(a) the processing is carried out by a public authority or body, except for courts acting in their judicial capacity;||GDPR 37|
|5||37.1(b)||(b) the core activities of the controller or the processor consist of processing operations which, by virtue of their nature, their scope and/or their purposes, require regular and systematic monitoring of data subjects on a large scale; or||GDPR 37|
|6||37.1(c)||(c) the core activities of the controller or the processor consist of processing on a large scale of special categories of data pursuant to Article 9 and personal data relating to criminal convictions and offences referred to in Article 10.||GDPR 37|
|7||37.2||2. A group of undertakings may appoint a single data protection officer provided that a data protection officer is easily accessible from each establishment.||GDPR 37|
|8||37.3||3. Where the controller or the processor is a public authority or body, a single data protection officer may be designated for several such authorities or bodies, taking account of their organisational structure and size.||GDPR 37|
|9||37.4||4. In cases other than those referred to in paragraph 1, the controller or processor or associations and other bodies representing categories of controllers or processors may or, where required by Union or Member State law shall, designate a data protection officer. The data protection officer may act for such associations and other bodies representing controllers or processors.||GDPR 37|
|10||37.5||5. The data protection officer shall be designated on the basis of professional qualities and, in particular, expert knowledge of data protection law and practices and the ability to fulfil the tasks referred to in Article 39.||GDPR 37|
|11||37.6||6. The data protection officer may be a staff member of the controller or processor, or fulfil the tasks on the basis of a service contract.||GDPR 37|
|12||37.7||7. The controller or the processor shall publish the contact details of the data protection officer and communicate them to the supervisory authority.||GDPR 37|
|Item||Reference||Articles which affect Article 37||Link|
|13||4.(1)||(1) 'personal data' means any information relating to an identified or identifiable natural person ('data subject'); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;||GDPR 4|
|14||4.(2)||(2) 'processing' means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction;||GDPR 4|
|15||4.(7)||(7) 'controller' means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data; where the purposes and means of such processing are determined by Union or Member State law, the controller or the specific criteria for its nomination may be provided for by Union or Member State law;||GDPR 4|
|16||4.(8)||(8) 'processor' means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller;||GDPR 4|
|17||4.(19)||(19) 'group of undertakings' means a controlling undertaking and its controlled undertakings;||GDPR 4|
|18||4.(21)||(21) 'supervisory authority' means an independent public authority which is established by a Member State pursuant to Article 51;||GDPR 4|
|19||38.||Article 38||GDPR 38|
|20||38.||Position of the data protection officer||GDPR 38|
|21||38.1||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.||GDPR 38|
|22||38.2||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.||GDPR 38|
|23||38.3||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.||GDPR 38|
|24||38.4||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.||GDPR 38|
|25||38.5||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.||GDPR 38|
|26||38.6||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.||GDPR 38|
|27||39.||Article 39||GDPR 39|
|28||39.||Tasks of the data protection officer||GDPR 39|
|29||39.1||1. The data protection officer shall have at least the following tasks:||GDPR 39|
|30||39.1(a)||(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;||GDPR 39|
|31||39.1(b)||(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;||GDPR 39|
|32||39.1(c)||(c) to provide advice where requested as regards the data protection impact assessment and monitor its performance pursuant to Article 35;||GDPR 39|
|33||39.1(d)||(d) to cooperate with the supervisory authority;||GDPR 39|
|34||39.1(e)||(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.||GDPR 39|
|35||39.2||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.||GDPR 39|
|Item||Reference||Definitions from published guidance which affect Article 37||Link|
|36||ICO||"When determining if processing is on a large scale, the guidelines say you should take the following factors into consideration:
|37||Art29WP||"Article 37(1)(b) and (c) requires that the processing of personal data be carried out on a large scale in order for the designation of a DPO to be triggered. The GDPR does not define what constitutes large-scale processing, though recital 91 provides some guidance.
Indeed, it is not possible to give a precise number either with regard to the amount of data processed or the number of individuals concerned, which would be applicable in all situations. This does not exclude the possibility, however, that over time, a standard practice may develop for identifying in more specific and/or quantitative terms what constitutes 'large scale' in respect of certain types of common processing activities. The WP29 also plans to contribute to this development, by way of sharing and publicising examples of the relevant thresholds for the designation of a DPO.
In any event, the WP29 recommends that the following factors, in particular, be considered when determining whether the processing is carried out on a large scale:
|38||ICO||"What does 'regular and systematic monitoring of data subjects on a large scale' mean?
There are two key elements to this condition requiring you to appoint a DPO. Although the GDPR does not define 'regular and systematic monitoring' or 'large scale', the Article 29 Working Party (WP29) provided some guidance on these terms in its guidelines on DPOs. WP29 has been replaced by the European Data Protection Board (EDPB) which has endorsed these guidelines.
'Regular and systematic' monitoring of data subjects includes all forms of tracking and profiling, both online and offline. An example of this is for the purposes of behavioural advertising."
|39||Art29WP||"The notion of regular and systematic monitoring of data subjects is not defined in the GDPR, but the concept of 'monitoring of the behaviour of data subjects' is mentioned in recital 24 and clearly includes all forms of tracking and profiling on the internet, including for the purposes of behavioural advertising. However, the notion of monitoring is not restricted to the online environment and online tracking should only be considered as one example of monitoring the behaviour of data subjects.
WP29 interprets 'regular' as meaning one or more of the following:
Footnote 15 [Recital 24: In order to determine whether a processing activity can be considered to monitor the behaviour of data subjects, it should be ascertained whether natural persons are tracked on the internet including potential subsequent use of personal data processing techniques which consist of profiling a natural person, particularly in order to take decisions concerning her or him or for analysing or predicting her or his personal preferences, behaviours and attitudes'.
Footnote 16: Note that Recital 24 focuses on the extra-territorial application of the GDPR. In addition, there is also a difference between the wording 'monitoring of their behaviour' (Article 3(2)(b)) and 'regular and systematic monitoring of data subjects' (Article 37(1)(b)) which could therefore be seen as constituting a different notion."
|Item||Reference||GDPR Recitals which affect Article 37|
|40||Recital 91||(91) This should in particular apply to large-scale processing operations which aim to process a considerable amount of personal data at regional, national or supranational level and which could affect a large number of data subjects and which are likely to result in a high risk, for example, on account of their sensitivity, where in accordance with the achieved state of technological knowledge a new technology is used on a large scale as well as to other processing operations which result in a high risk to the rights and freedoms of data subjects, in particular where those operations render it more difficult for data subjects to exercise their rights. A data protection impact assessment should also be made where personal data are processed for taking decisions regarding specific natural persons following any systematic and extensive evaluation of personal aspects relating to natural persons based on profiling those data or following the processing of special categories of personal data, biometric data, or data on criminal convictions and offences or related security measures. A data protection impact assessment is equally required for monitoring publicly accessible areas on a large scale, especially when using optic-electronic devices or for any other operations where the competent supervisory authority considers that the processing is likely to result in a high risk to the rights and freedoms of data subjects, in particular because they prevent data subjects from exercising a right or using a service or a contract, or because they are carried out systematically on a large scale. The processing of personal data should not be considered to be on a large scale if the processing concerns personal data from patients or clients by an individual physician, other health care professional or lawyer. In such cases, a data protection impact assessment should not be mandatory.|
|41||Recital 97||(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.|
|Item||Reference||Related Guidance which affects Article 37|
|42||The meaning of "large scale" is considered in Article 29 Working Party Guidelines on Data protection officers||Guidance|
|43||ICO guidance on Data Protection Officers||Guidance|
|44||Article 29 Working Party Guidelines on Data protection officers||Guidance|
|45||ICO guidance on Accountability principle||Guidance|
|46||ICO guidance on Accountability and governance||Guidance|