GENERAL DATA PROTECTION REGULATION AND DATA PROTECTION ACT 2018

This table contains extracts and summaries of legislation using among other things the headings of paragraphs in the Schedules to the UK Data Protection Act 2018 ('DPA'). After identifying relevant paragraphs in those Schedules, users of this table should always use the DPA links provided to refer to the full text of those paragraphs, in order to identify their precise scope and to identify the 'listed GDPR provisions'. (See Summary of Data Protection Act 2018 for further explanation.)

Item Reference       Article 37 Link
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
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:
  • the numbers of data subjects concerned;
  • the volume of personal data being processed;
  • the range of different data items being processed;
  • the geographical extent of the activity; and
  • the duration or permanence of the processing activity."
Guidance
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:
  • 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 providing these services
  • 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
Footnote 14: According to the recital [91], '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' would be included, in particular. On the other hand, the recital specifically provides that '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'. It is important to consider that while the recital provides examples at the extremes of the scale (processing by an individual physician versus processing of data of a whole country or across Europe); there is a large grey zone in between these extremes. In addition, it should be borne in mind that this recital refers to data protection impact assessments. This implies that some elements might be specific to that context and do not necessarily apply to the designation of DPOs in the exact same way."
Guidance
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."
Guidance
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:
  • 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
Examples of activities that may constitute a regular and systematic monitoring of data subjects: operating a telecommunications network; providing telecommunications services; email retargeting; data-driven marketing activities; profiling and scoring for purposes of risk assessment (e.g. for purposes of credit scoring, establishment of insurance premiums, fraud prevention, detection of money-laundering); location tracking, for example, by mobile apps; loyalty programs; behavioural advertising; monitoring of wellness, fitness and health data via wearable devices; closed circuit television; connected devices e.g. smart meters, smart cars, home automation, etc.
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."
Guidance
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
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