Article 38 GDPR

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Article 38 - Position of the data protection officer
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Chapter 10: Delegated and implementing acts

Legal Text[edit | edit source]


Article 38 - Position of the data protection officer

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.

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.

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.

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.

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.

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.

Relevant Recitals[edit | edit source]

Recital 97: Data Protection Officer
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.

Commentary[edit | edit source]

Article 38 addresses the responsibilities and position of the Data Protection Officer (DPO) within an organization. The article outlines the role and tasks of the DPO, emphasizing the importance of their independence and expertise in data protection matters.[1] Paragraph 1 ensures the DPO's timely and proper involvement in any data protection issues. Paragraph 2 states that controllers and processors are required to support the DPO in the execution of their tasks by providing necessary resources. Paragraph 3 highlights the independent nature of the DPO's role, ensuring they are free from any influence or retaliation from the controller in matters pertaining to their office. Paragraph 4 ensures that data subjects have the right to contact the DPO regarding any issues concerning the processing of their personal data and the exercise of their data protection rights. Lastly, Paragraphs 5 and 6 impose an obligation of confidentiality on the DPO and address rules concerning potential conflicts of interest.

(1) DPO's involvement in any data protection issues[edit | edit source]

According to Article 38(1) GDPR, the DPO must be involved in a timely manner in all issues which relate to the protection of personal data. In this context, "in timely manner" would mean the earliest possible stage, ideally at the certain processing operations are designed.[2] In any case, the DPO shall be involved at a stage when fundamental decisions can still be taken.[3]

Among others, the early involvement is necessary in order to adequately conduct a Data Protection Impact Assessment (DPIA) and facilitate a privacy by design approach.[4] DPOs should also be regularly involved in management meetings, and opinions of the DPO should be given due weight. In case management disagrees with the DPO’s opinions, the Article 29 Working Party recommends documenting the reasons for not following the DPO’s position.[5] Indeed, this best practice seems to stem also from the principle of accountability (Articles 5(2) and 24 GDPR).

However, despite their contacts with the highest management level, the DPO will never be held personally liable for the non-compliance of the organisation, as liability always stays with the controller.[6]

(2) Necessary resources[edit | edit source]

Under Article 38(2) GDPR, the DPO must be provided with all necessary resources to carry out their tasks, including access to personal data and processing operations and the possibility to maintain the expert knowledge which is necessary to perform their tasks.

In this context, the WP29 suggests considering certain elements. Firstly, senior management must support the DPO and provide sufficient time for them to fulfill their responsibilities. This is especially crucial when the DPO is an internal appointee working on a part-time basis, as conflicting priorities could hinder their effectiveness. To address this, the WP29 recommends establishing a percentage of time the DPO dedicates to their role, possibly through a work plan. Additionally, the support provided to the DPO should encompass adequate financial, technical, and personnel resources. It is also essential to communicate the existence and contact details of the DPO to all staff members of the controller or processor to ensure accessibility.

The authority to access personal data and processing operations mentioned in the GDPR entails for example that the DPO must be allowed to enter all premises where personal data is or may be processed, including on the premises of data processors.[7]

Expert knowledge can be maintained through the institution of updating courses to keep the DPO and their team informed about data protection developments and related disciplines. Alternatively, the DPO must be put in the condition to autonomously catch up with the relevant updates, being the workload no justification to postpone or ignore such an obligation.

In general, the allocation of resources for the DPO should be directly proportional to the type, complexity, and risks associated with data processing activities. In summary, the WP29 emphasizes the significance of providing comprehensive support to the DPO to ensure effective data protection practices and compliance with relevant regulations. Adequate resources, time, and accessibility are essential to facilitate the DPO's role within an organization.[8]

(3) Independence, no retaliation, direct communication with management[edit | edit source]

According to Article 38(3) GDPR, the DPO’s independence in the organisation must be guaranteed by the controller or processor. In particular, the DPO may not receive any instructions from either of them regarding their tasks, and may not be dismissed or sanctioned for performing these tasks. This extends to the personnel working under the DPO, which should only receive substantive directions from the DPO and not from the controller or processor.[9] Regarding penalties or sanctions related to the exercise of the DPO’s functions, a broad interpretation must be followed. For example, the DPO shall not suffer disadvantages in the form of threats, absence or delay of promotion, or denial from benefits which other employees receive.

Independence[edit | edit source]

The first part of Article 38(3) grants the DPO the right to carry out their duties with an adequate level of autonomy and independence. Specifically, this means that the DPO "does not receive any instructions regarding the exercise of [his or her] tasks." In essence, the DPO is empowered to perform their responsibilities without being subject to direct instructions or interference from the controller or processor. As DPOs fulfill their responsibilities under Article 39, they must not receive any instructions on how to handle a matter, such as specifying the desired outcome, guiding the investigation of a complaint, or determining whether to consult the supervisory authority. Additionally, they should not be directed to adopt a particular perspective on issues related to data protection law, including a specific interpretation of the law. This provision ensures the DPO's independence and prevents any undue influence that could compromise their objective and impartial role in safeguarding data protection rights.[10]

No retaliation or penalties[edit | edit source]

Article 38(3) requires that DPOs should "not be dismissed or penalised by the controller or the processor for performing [their] tasks." This measure strengthens the autonomy of the DPO by shielding them from possible retaliations by the employer, controller, or processor. It should be noted that sanctions are only prohibited when they are connected to the exercise of the DPO's functions. For instance, if, following a DPIA, the DPO concludes that high risks persist and suggests activating the prior consultation mechanism as per Article 36 of the GDPR, the DPO cannot be dismissed for expressing their opinion. However, just like any other employee or contractor under applicable national contract, labor, and criminal law, a DPO could still be legitimately dismissed for reasons unrelated to the performance of their DPO tasks. For example, grounds for dismissal might include theft, physical, psychological, or sexual harassment, or other forms of gross misconduct.

Sanctions against the DPO can take various forms, both direct and indirect. These may include the absence or delay of promotions, hindrance in career advancement, or denial of benefits that other employees receive. It is not necessary for these penalties to be actually implemented; even a mere threat is sufficient as long as they are used to penalize the DPO based on their DPO activities.[11]

Direct communication with management[edit | edit source]

If the controller or processor takes decisions that are not in line with the GDPR and contradict the advice given by the DPO, the DPO should have the opportunity to express their dissenting opinion to the highest management level and decision-makers. Article 38(3) facilitates this process by stating that the DPO "shall directly report to the highest management level of the controller or the processor." This direct reporting ensures that senior management, such as the board of directors, is informed of the DPO's advice and recommendations, as it is part of the DPO's role to inform and advise the controller or processor. Another example of direct reporting is the preparation of an annual report detailing the DPO's activities, which is submitted to the highest management level.[12]

(4) DPO as contact point for data subjects[edit | edit source]

Article 38(4) grants the data subject the right to "contact" the DPO on any "issues" related to (i) the processing of their personal data and (ii) the exercise of their GDPR rights. Regarding the first aspect, (i), the possibility of "contacting" the DPO implies their capability to conduct internal investigations to verify the existence of violations, if necessary, and report such findings to top management. Furthermore, the DPO should inform the data subject about the results of their investigation. Concerning the exercise of data subject rights, it is worth noting that the DPO is not directly responsible for executing these rights. Instead, their role is to inform the data subject about the specific rights they possess, particularly in relation to the data subject's specific case. Nonetheless, the obligation to ensure the proper exercise of each right ultimately remains the responsibility of the controller.[13]

(5) Confidentiality[edit | edit source]

The phrasing of paragraph 5 is not entirely precise. The GDPR states that the DPO's actions are bound by "secrecy or confidentiality" "in accordance with Union or Member State law". Firstly, the distinction between "secrecy" and "confidentiality" is not entirely clear, as both terms involve containing information within a special relationship, withholding it from others.[14] Secondly, the provision does not clarify what happens if there is no European or national law that regulates secrecy or confidentiality for the DPO, which is the case for most situations. It would have been more straightforward to state that the DPO's actions are covered by "secrecy or confidentiality unless otherwise provided by Union or Member State law."[15] Thirdly, significant uncertainties remain regarding the scope of this confidentiality obligation. For instance, towards whom can the obligation be enforced? If an employee of the controller seeks clarifications regarding the processing of their data, can the request be considered protected and confidential towards the controller itself? Conversely, could the content of the assistance provided by the DPO in drafting a Data Protection Impact Assessment (DPIA) be confidential concerning employees affected by that specific impact assessment?

The literal language of the provision unfortunately does not clarify these doubts, leaving us to interpret it systematically. In this perspective, it is likely necessary to consider the actual context of the specific task performed by the DPO. For instance, in the case of Article 39(1)(b) GDPR (monitoring the controller's compliance with the rules), confidentiality should protect the data subject, who is the passive subject of potential violations committed by the controller. Thus, it can be concluded that the DPO "shall be bound by secrecy or confidentiality" regarding all elements of the request, including the data subject's identity.[16] Likewise, if the request for assistance comes from the data protection authority (Article 39(1)(e) GDPR), confidentiality would protect the DPA and the ongoing investigation, obliging the DPO to maintain secrecy concerning third parties outside the controller's structure. Regarding the confidentiality requirements of Article 38(5) GDPR, it is worth emphasising that the “obligation of secrecy/confidentiality does not prohibit the DPO from contacting and seeking advice from the supervisory authority”.[17] Finally, Member States may regulate and limit the confidentiality requirements at the national level, as well as the legal consequences of breaching these requirements.[18]

(6) Conflict of interests[edit | edit source]

Tightly connected to the independence requirement is Article 38(6) GDPR which emphasises that while the DPO may fulfill other tasks and duties, these should not result in a conflict of interests. When interpreting this requirement, the WP29 stated that the DPO may not hold positions which result in determining the purposes and means of the processing. Examples of such conflicting positions could be “senior management positions (such as chief executive, chief operating, chief financial, chief medical officer, head of marketing department, head of Human Resources or head of IT departments) but also other roles lower down in the organisational structure if such positions or roles lead to the determination of purposes and means of processing”.[19] Some commentators have also argued that a possible indicator of a conflict of interest is related to the cases where the DPO may benefit economically from the success of the organisation they are working for.[20]

Decisions[edit | edit source]

→ You can find all related decisions in Category:Article 38 GDPR

References[edit | edit source]

  1. While it brings a novel element, the data protection officer (DPO) role draws inspiration from Regulation 45/2001, which foresaw a similar position for European Union institutions, bodies, and agencies. Indeed, the GDPR’s DPO position shows many common elements with the aforementioned Regulation. See, Alvarez Rigaudias, Spina, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 38 GDPR, p. 702 (Oxford University Press 2020). In addition, although Directive 95/46/EC did not require organisations to appoint a DPO, this nevertheless became an increasingly widespread practice in some Member States. WP29, ‘Guidelines on Data Protection Officers (‘DPOs’)’, 16/EN WP 243 rev.01, 5 April 2017, p. 4 (available here).
  2. For example, this could be the design and development of a product, as well as the creation of a new service or modification of an existing one by adding new features.
  3. Bergt, in Kühling, Buchner, DS-GVO BDSG, Article 38 GDPR, margin number 14 (C.H. Beck 2020, 3rd Edition).
  4. WP29, ‘Guidelines on Data Protection Officers (‘DPOs’)’, 16/EN WP 243 rev.01, 5 April 2017, p. 13 (available here).
  5. WP29, ‘Guidelines on Data Protection Officers (‘DPOs’)’, 16/EN WP 243 rev.01, 5 April 2017, p. 14 (available here).
  6. Alvarez Rigaudias, Spina, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 38 GDPR, p. 707 (Oxford University Press 2020).
  7. Bergt, in Kühling, Buchner, DS-GVO BDSG, Article 38 GDPR, margin number 20 (C.H. Beck 2020, 3rd Edition).
  8. WP29, ‘Guidelines on Data Protection Officers (‘DPOs’)’, 16/EN WP 243 rev.01, 5 April 2017, p. 14 (available here).
  9. Bergt, in Kühling, Buchner, DS-GVO BDSG, Article 38 GDPR, margin number 26 (C.H. Beck 2020, 3rd Edition).
  10. WP29, ‘Guidelines on Data Protection Officers (‘DPOs’)’, 16/EN WP 243 rev.01, 5 April 2017, p. 15 (available here).
  11. WP29, ‘Guidelines on Data Protection Officers (‘DPOs’)’, 16/EN WP 243 rev.01, 5 April 2017, pp. 15-16 (available here).
  12. WP29, ‘Guidelines on Data Protection Officers (‘DPOs’)’, 16/EN WP 243 rev.01, 5 April 2017, p. 15 (available here).
  13. Scholars emphasize that the DPO must be directly reachable by the data subject. If the communication is directed to another recipient, it should be forwarded "unopened" to the DPO or a member of their team. This reinforces the notion that the contact details provided in accordance with Article 37(7) should enable direct communication with the DPO, possibly even through encrypted means. See, Bergt, in Kühling, Buchner, DS-GVO BDSG, Article 38 GDPR, margin number 35 (C.H. Beck 2020, 3rd Edition).
  14. Behr, H. (2006). Special Section: Secrecy and Confidentiality in Groups. Group Analysis, 39(3), 356–365.
  15. This wording would establish a general obligation of confidentiality while allowing exceptions, such as in the case of legal deposition.
  16. Along these lines, Bergt, in Kühling, Buchner, DS-GVO BDSG, Article 38 GDPR, margin number 38b (C.H. Beck 2020, 3rd edition).
  17. WP29, ‘Guidelines on Data Protection Officers (‘DPOs’)’, 16/EN WP 243 rev.01, 5 April 2017, p. 18 (available here).
  18. See Article 35(3) GDPR.
  19. WP29, ‘Guidelines on Data Protection Officers (‘DPOs’)’, 16/EN WP 243 rev.01, 5 April 2017, p. 16 (available here).
  20. Bergt, in Kühling, Buchner, DS-GVO BDSG, Article 38 GDPR, margin number 41 (C.H. Beck 2020, 3rd Edition).