September 17, 2022

What Is a GDPR Data Protection Officer (DPO), and Do You Need One?

When a business operator realizes they need to comply with the GDPR or any other data protection law, one of the first questions to pop up in their head is - Do I need a DPO? Learn all about DPOs here.

As businesses become more aware of the need to comply with data protection laws, many are still unsure who should be appointed as a data protection officer (DPO). This article will explain what a GDPR DPO is, what the DPO does, and who needs to appoint one. By doing so, companies can ensure that they are taking the right steps to protect their data and comply with the GDPR.

You will learn:

  • What is a Data Protection Officer (DPO) under the GDPR?
  • Is it necessary to appoint a DPO?
  • Who is eligible to be a DPO?
  • What does the DPO do?
  • What is the distinction between a DPO and a legal representative in the EU? 

What is a Data Protection Officer (DPO) under the GDPR?

DPOs are responsible for ensuring that the personal data of their employees, customers, providers, or anyone else is processed in compliance with the GDPR and national data protection laws. It is their responsibility to ensure that all necessary processes and controls are in place to protect the privacy of all individuals involved in the organization's data processing. 

The DPO must be independent. The GDPR protects their autonomy. In particular:

  • No one may give the DPO instructions on how to perform their duties;
  • They may not be fired or penalized for their efforts; and,
  • The employer must provide all information regarding the organization's privacy practices. 

When a company decides to go against the advice of its DPO and perform an operation, the reasoning must be documented. This documentation can aid in demonstrating GDPR compliance (see more on GDPR-compliant cookie banners) during an investigation by a supervisory authority. Keeping this written documentation on file can help protect your business from potential fines or penalties. 

Is it necessary to appoint a DPO?

A DPO is not required for all businesses. Some businesses must appoint one, while others do so as a matter of choice and good practice. 

You need to appoint a DPO if:

  • The GDPR applies to you, and,
  • You meet the GDPR legal requirements for appointing a DPO.

GDPR applies to you if:

  • Your business is based in the EU, or,
  • You have users from the EU.

You must also determine whether you meet the legal requirements for appointing a DPI if the GDPR applies to your business. You must appoint a DPO if:

  • You are a public authority (excluding courts in their judicial capacity), or,
  • Your core activities involve processing that requires regular and systematic large-scale monitoring of persons, or,
  • Your processing of special categories of data or data related to criminal convictions and offenses on a large scale.

If you meet at least one of these criteria, you need a DPO. You are not required to have one if you do not meet the requirements. Still, having one is generally a good practice.

If you believe you do not need to appoint a DPO, then you must document this decision. You must keep a written documentation which briefly explains your processing activities and why they do not require one.

Who is eligible to be a DPO?

The DPO can be anyone who has sufficient knowledge to perform their DPO duties. It could be a company employee or someone hired from outside the company. 

In most cases, the work of a DPO is not full-time. Some businesses decide to train some of their employees and hire someone for the position. Others find it more convenient to outsource it to data protection consulting firms. 

It is entirely up to you and what best suits your circumstances. 

However, when deciding which option to pursue, keep in mind that the DPO's role was designed to be independent of processing activities. Appointing your marketing manager for the role may not be a good idea because they will be making a lot of processing decisions. Learn about the 11 GDPR Marketing Mistakes and How to Fix Them.

What Does the DPO Do?

The GDPR only requires the DPO to perform the bare minimum of activities on a regular basis. They are as follows: 

  • Monitoring the compliance of the processing activities
  • Providing compliance advice as needed 
  • Assist with Data Protection Impact Assessments
  • Informing employees who handle personal data about their GDPR responsibilities 
  • Serving as a point of contact for the supervisory authority, and
  • Collaboration with the regulatory authority

This is by no means an exhaustive list. The DPO must do everything possible to highlight noncompliance and shift processing activities toward compliance. See some common problems GDPR DPOs face.

Is the DPO Personally Liable for GDPR Non-Compliance?

No, the DPO is not personally liable for non-compliance with the GDPR. The DPO is the person who monitors and advises on privacy-related activities in an organization. 

They do not, however, make any data processing decisions. As a result, holding them accountable makes no sense. 

What is the distinction between a DPO and a legal representative in the EU? 

Just as some businesses are required by the GDPR to appoint a DPO, some businesses may be required to appoint a legal representative in the European Union. A DPO and a legal representative, on the other hand, are not the same thing. Even if you already have a DPO, you may still require the services of a legal representative. 

Organizations that meet all of the requirements listed below must appoint a legal representative in the EU:

  • They have their headquarters outside of the EU.
  • They have no presence in the European Union. 
  • They offer goods and services to EU citizens. 
  • They process the data of EU citizens.
  • They are not a government agency or body. 
  • They regularly process sensitive personal data or criminal convictions data. 

If you operate from outside the EU and process sensitive data about Europeans, you must have a legal representative. In all other cases, appointing one is not required.

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