From now on, data controllers must notify the competent data protection authority (“DPA”) about their data processing activities.
However, an exemption to this obligation (also known as “alternative obligation”) is allowed by certain EU Member States, such as Germany, if these conditions are met: (i) a data protection officer (“DPO”) is appointed in the company and (ii) records of the processing activities are kept and updated. Under the new GDPR, this approach is preferred over the traditional notification obligation. The EU legislature tries to heighten data controllers’ accountability by replacing the notification obligation with alternative obligations. Here, we will focus on the two main alternative obligations that shape this heightened accountability principle: (i) the obligation to keep records and (ii) the obligation to conduct data protection impact assessments (“DPIAs”). The specific role of the DPO will be discussed in another publication later on.
Records of processing operations and cooperation with the DPAs
Every data controller must keep records pertaining to all aspects of the data processing operations under its responsibility. This broadly includes the information that must already be notified to the Belgian or Dutch DPA under the current legal framework, i.e., contact details of the data controller, categories of personal data processed, recipients of the data, international transfers, retention periods. The GDPR now also imposes such record-keeping obligation on data processors and compels both data controllers and data processors to cooperate with their DPA and make these records available upon request.
Furthermore, if certain appropriate data protection policies are proportional to the specific processing activities, the data controller must implement them. Such policies are supposed to create awareness and to inform and train the data controller’s staff on data protection issues.
The GDPR also introduces the requirement that DPIAs must be conducted for certain high-risk data processing operations such as processing activities that can create a risk of discrimination, identity theft, fraud, or financial loss. A DPIA is especially required for (i) a systematic and extensive evaluation of natural persons through automated processing activities (e.g., profiling) that produces legal effects or significantly affect the individual (this could potentially include website analytics tools, the creation of motion profiles by mobile applications, or the creation of personal profiles by social media networks); (ii) large-scale processing of sensitive data such as biometric data or criminal conviction records, and (iii) systematic large-scale monitoring of a publicly accessible area such as monitoring through the use of optic-electronic devices such as CCTV video surveillance.
A DPIA should consist at least of (i) a description of the envisaged processing operation and the purpose of the processing (What does the processing encompass and what purpose does it serve?); (ii) an assessment of the proportionality and the necessity of the processing operation in relation to the purposes (Is the processing reasonable in light of the purposes?); (iii) an assessment of the risks that can affect the rights and freedoms of the individuals whose data are being processed (the “data subjects”); and (iv) the measures envisaged to be taken (a) to address these risks, including safeguards and security measures and (b) to demonstrate compliance. Apart from these four pointers, the GDPR does not contain any concrete guidance on how to conduct a DPIA. We expect that this will be picked up by the DPAs, as this has already been done by the CNIL in France.
In addition, if the results of the DPIA show that the processing operations would result in a high risk that cannot be mitigated by appropriate measures in terms of available technology and costs of implementation, the data controller must consult the DPA prior to the start of the processing operations. Again, the outcome of such consultations is likely to vary depending on the DPA concerned.
Going forward, companies should verify whether they have adequate records of all data processing operations and make sure such records are being kept up to date. This will in practice require companies to assign specific resources to ensure regular updates and follow-up of those records. In addition, companies will need to verify whether any of the processing operations it wishes to undertake requires a DPIA and consult the DPAs as appropriate.
Last but not least, companies will need to check whether they have suitable technical and organizational measures in place to ensure and demonstrate compliance with the GDPR. To this end, companies can find guidance in the indications given by a DPO or in the guidelines that can be issued by the European Data Protection Board.
The global approach in terms of accountability adopted in the GDPR does not leave much room for tailoring the regulatory requirements to the specific type of organization concerned. This can have financial consequences on the smaller organizations and will also trigger a heavy administrative burden for all of them.
This article was co-written by alumnus Cédric Lindenmann.
To read more about this series of articles (and the articles that were published previously), please click here.