Difference between revisions of "Article 35 GDPR"

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Compliance with approved codes of conduct referred to in [[Article 40 GDPR]] by the relevant controllers or processors shall be taken into due account in assessing the impact of the processing operations performed by such controllers or processors, in particular for the purposes of a data protection impact assessment.  
 
Compliance with approved codes of conduct referred to in [[Article 40 GDPR]] by the relevant controllers or processors shall be taken into due account in assessing the impact of the processing operations performed by such controllers or processors, in particular for the purposes of a data protection impact assessment.  
  
== (9) Other subjects may be involved in the drafting of the DPIA ==
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=== (9) Other subjects may be involved in the drafting of the DPIA ===
 
The controller is, of course, the main responsible for the drafting of the DPIA. However, other subjects can or shall be involved in the preparation of the document.  
 
The controller is, of course, the main responsible for the drafting of the DPIA. However, other subjects can or shall be involved in the preparation of the document.  
  

Revision as of 15:00, 16 August 2021

Article 35 - Data protection impact assessment
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Chapter 10: Delegated and implementing acts

Legal Text


Article 35 - Data protection impact assessment


1. Where a type of processing in particular using new technologies, and taking into account the nature, scope, context and purposes of the processing, is likely to result in a high risk to the rights and freedoms of natural persons, the controller shall, prior to the processing, carry out an assessment of the impact of the envisaged processing operations on the protection of personal data. A single assessment may address a set of similar processing operations that present similar high risks.

2. The controller shall seek the advice of the data protection officer, where designated, when carrying out a data protection impact assessment.

3. A data protection impact assessment referred to in paragraph 1 shall in particular be required in the case of:

(a) a systematic and extensive evaluation of personal aspects relating to natural persons which is based on automated processing, including profiling, and on which decisions are based that produce legal effects concerning the natural person or similarly significantly affect the natural person;
(b) processing on a large scale of special categories of data referred to in Article 9(1), or of personal data relating to criminal convictions and offences referred to in Article 10; or
(c) a systematic monitoring of a publicly accessible area on a large scale.

4. The supervisory authority shall establish and make public a list of the kind of processing operations which are subject to the requirement for a data protection impact assessment pursuant to paragraph 1. The supervisory authority shall communicate those lists to the Board referred to in Article 68.

5. The supervisory authority may also establish and make public a list of the kind of processing operations for which no data protection impact assessment is required. The supervisory authority shall communicate those lists to the Board.

6. Prior to the adoption of the lists referred to in paragraphs 4 and 5, the competent supervisory authority shall apply the consistency mechanism referred to in Article 63 where such lists involve processing activities which are related to the offering of goods or services to data subjects or to the monitoring of their behaviour in several Member States, or may substantially affect the free movement of personal data within the Union.

7. The assessment shall contain at least:

(a) a systematic description of the envisaged processing operations and the purposes of the processing, including, where applicable, the legitimate interest pursued by the controller;
(b) an assessment of the necessity and proportionality of the processing operations in relation to the purposes;
(c) an assessment of the risks to the rights and freedoms of data subjects referred to in paragraph 1; and
(d) the measures envisaged to address the risks, including safeguards, security measures and mechanisms to ensure the protection of personal data and to demonstrate compliance with this Regulation taking into account the rights and legitimate interests of data subjects and other persons concerned.

8. Compliance with approved codes of conduct referred to in Article 40 by the relevant controllers or processors shall be taken into due account in assessing the impact of the processing operations performed by such controllers or processors, in particular for the purposes of a data protection impact assessment.

9. Where appropriate, the controller shall seek the views of data subjects or their representatives on the intended processing, without prejudice to the protection of commercial or public interests or the security of processing operations.

10. Where processing pursuant to point (c) or (e) of Article 6(1) has a legal basis in Union law or in the law of the Member State to which the controller is subject, that law regulates the specific processing operation or set of operations in question, and a data protection impact assessment has already been carried out as part of a general impact assessment in the context of the adoption of that legal basis, paragraphs 1 to 7 shall not apply unless Member States deem it to be necessary to carry out such an assessment prior to processing activities.

11. Where necessary, the controller shall carry out a review to assess if processing is performed in accordance with the data protection impact assessment at least when there is a change of the risk represented by processing operations.

Relevant Recitals

Recital 75: Risks to the Rights and Freedoms of Natural Persons
The risk to the rights and freedoms of natural persons, of varying likelihood and severity, may result from personal data processing which could lead to physical, material or non-material damage, in particular: where the processing may give rise to discrimination, identity theft or fraud, financial loss, damage to the reputation, loss of confidentiality of personal data protected by professional secrecy, unauthorised reversal of pseudonymisation, or any other significant economic or social disadvantage; where data subjects might be deprived of their rights and freedoms or prevented from exercising control over their personal data; where personal data are processed which reveal racial or ethnic origin, political opinions, religion or philosophical beliefs, trade union membership, and the processing of genetic data, data concerning health or data concerning sex life or criminal convictions and offences or related security measures; where personal aspects are evaluated, in particular analysing or predicting aspects concerning performance at work, economic situation, health, personal preferences or interests, reliability or behaviour, location or movements, in order to create or use personal profiles; where personal data of vulnerable natural persons, in particular of children, are processed; or where processing involves a large amount of personal data and affects a large number of data subjects.

Commentary

Overview

The Data Protection Impact Assessment (DPIA), one of the most innovative by-products of the accountability principle (see Article 24 GDPR), takes into account “the nature, scope, context and purposes of the processing”, evaluates its potential risks and consider any remedy which can minimise or reduce such risks.

(1) Mandatory DPIA

Controllers must carry out a DPIA before the processing takes place if, “taking into account the nature, scope, context and purposes of the processing”, the processing “is likely to result in a high risk to the rights and freedoms of natural persons”.

According to Recital 75 GDPR, these risks may result from personal data processing which could lead to physical, material or non-material damage, in particular: where the processing may give rise to discrimination, identity theft or fraud, financial loss, damage to the reputation, loss of confidentiality of personal data protected by professional secrecy, unauthorised reversal of pseudonymisation, or any other significant economic or social disadvantage; where data subjects might be deprived of their rights and freedoms or prevented from exercising control over their personal data; where personal data are processed which reveal racial or ethnic origin, political opinions, religion or philosophical beliefs, trade union membership, and the processing of genetic data. Of particular concern are also data concerning health or data concerning sex life or criminal convictions and offences or related security measures; where personal aspects are evaluated, in particular analysing or predicting aspects concerning performance at work, economic situation, health, personal preferences or interests, reliability or behaviour, location or movements, in order to create or use personal profiles; where personal data of vulnerable natural persons, in particular of children, are processed; or where processing involves a large amount of personal data and affects a large number of data subjects.

(2) Involvement of the Data Protection Officer

Where an obligation to carry out the DPIA exists, the Data Protection Officer has to be involved in the procedure. In this regard, the controller has to consult the designated DPO for their advice. However, this advice can be of rather limited and general nature.[1] Accordingly, the controller is not obliged to follow the DPO’s opinion and there is no ‘Veto’ of the DPO. In fact, the DPIA cannot be delegated to the DPO, but rather requires a mere advisory function is this regard.[2]

(3) Likely to result in a high risk

Certain types of processing seem therefore “intrinsically” risky and, under Article 35(3) GDPR, require a previous DPIA. In particular, when processing involves (a) a systematic and extensive evaluation of personal aspects relating to natural persons which is based on automated processing, including profiling, and on which decisions are based that produce legal effects concerning the natural person or similarly significantly affect the natural person; (b) processing on a large scale of special categories of data referred to in Article 9(1) GDPR, or of personal data relating to criminal convictions and offences referred to in Article 10 GDPR; or (c) a systematic monitoring of a publicly accessible area on a large scale. The above-mentioned circumstances, however, do not constitute an exclusive list. It follows that a DPIA may be required also for different types of processing which are not mentioned in the list.[3]

(4) DPA’s list of processing for which a DPIA is required

Every DPA must establish a list of processing for which a DPIA is always required.

(5) DPA’s list of processing for which no DPIA is required

Authorities can also draft a list of processing which may not require a DPIA.

(6) Consistency mechanism is required to adopt lists under paragraphs 4 and 5

Where such lists involve processing activities which are related to the offering of goods or services to data subjects or to the monitoring of their behaviour in several Member States, or may substantially affect the free movement of personal data within the Union, the competent supervisory authority shall communicate them to the EDPB and apply the consistency mechanism referred to in Article 63 GDPR.

(7) DPIA minimum requirements

Article 35(7) GDPR sets out a list of minimum requirement which shall be dealt with in the assessment.

To begin, the DPIA will provide a systematic description of the envisaged processing operations and the purposes. These elements must be described in a clear, concise and exhaustive way Article 35(7)(a) GDPR.

The assessment will then assess and explain the necessity and proportionality of each processing with regard to the single purpose pursued. The controller shall explain for which reason a processing or a set of processing is necessary to pursue a specific purpose. In doing so, it also has to justify why other less intrusive processing is not suitable for the purpose Article 35(7)(b) GDPR.

The DPIA must also include an assessment of the risks (Article 35(7)(b) GDPR). A “risk” is a scenario describing an event and its consequences, estimated in terms of severity and likelihood. “Risk management” can be defined as the coordinated activities to direct and control an organisation with regard to risk.[4] It is generally possible to distinguish between “implied risk” and “residual risk”. The former refers to the probability of bad consequences if no preventive measures are taken by the controller. The latter is, on the contrary, the possible negative impact which is possible after certain measures are adopted.[5]

(8) Codes of conducts

Compliance with approved codes of conduct referred to in Article 40 GDPR by the relevant controllers or processors shall be taken into due account in assessing the impact of the processing operations performed by such controllers or processors, in particular for the purposes of a data protection impact assessment.

(9) Other subjects may be involved in the drafting of the DPIA

The controller is, of course, the main responsible for the drafting of the DPIA. However, other subjects can or shall be involved in the preparation of the document.

The processor shall participate in the drafting of the DPIA and shall assist the controller by providing all necessary information (Article 28(3)(f) GDPR). The DPO is also involved in the drafting of the DPIA under Article 35(2) GDPR and Article 39(1)(c) GDPR. The DPO’s advice is recorded by the controller.

Under Article, 35(9) GDPR, the controller, “where appropriate” shall “seek the views of data subjects or their representatives on the intended processing”. Should the controller find the consultation “not appropriate”, it is believed it must motivate its decision. The same effort seems to be required in case the controller do involve the data subjects but then decide to overcome their negative feedback.

(10) National exemptions

There is no obligation to conduct a DPIA when the processing is based on European or member state law in terms of Article 6(1)(c)(e) GDPR for which the law maker already conducted a general impact assessment.[see also Recital 93 GDPR] In this regard, the law maker can decide to shift the DPIA to the process of law-making in order to reduce the resulting bureaucracy for public institutions relying on that law for their processing of personal data.[6] However, the law maker is not obliged to do so and can still request controllers to carry out their own DPIA.

(11) The DPIA must be updated

Article 35(11) GDPR requires the controller to assess if processing is performed in accordance with the data protection impact assessment. The fact that the DPIA may need to be updated once the processing has actually started is not a valid reason for postponing or not carrying out a DPIA. The DPIA is an on-going process, especially where a  processing operation is  dynamic and  subject  to ongoing  change. Carrying  out a DPIA  is  a continual process, not a one-time exercise.[7]


Decisions

→ You can find all related decisions in Category:Article 35 GDPR

References

  1. Jandt, in Kühling/Buchner, DS-GVO BDSG, Art. 35 GDPR, margin number 18 (C.H. Beck 2020).
  2. Jandt, in Kühling/Buchner, DS-GVO BDSG, Art. 35 GDPR, margin number 18 (C.H. Beck 2020).
  3. Karg, in Simitis/Hornung/Spieker, Datenschutzrecht, Art. 35 GDPR, margin number 36 (NOMOS 2019).
  4. WP29, Guidelines WP 248 rev.01 on Data Protection Impact Assessment (DPIA) and determining whether processing is “likely to result in a high risk” for the purposes of Regulation 2016/679, 4th april 2017, p.6
  5. Under Article 35(8) GDPR, compliance with approved codes of conduct referred to in Article 40 by the relevant controllers or processors “shall be taken into due account in assessing the impact of the processing operations performed by such controllers or processors, in particular for the purposes of a data protection impact assessment.”
  6. Karg, in Simitis/Hornung/Spieker, Datenschutzrecht, Art. 35 GDPR, margin number 58 (NOMOS 2019).
  7. [WP29, Guidelines WP 248 rev.01 on Data Protection Impact Assessment (DPIA) and determining whether processing is “likely to result in a high risk” for the purposes of Regulation 2016/679, 4th april 2017, p.14.