Today, companies that are responsible for one or more databases containing personal data (“data controllers”) are required to notify their data processing activities to the competent data protection authority (“DPA”).
Certain EU Member States, such as Germany, provided for an exemption to this notification obligation if a data protection officer (“DPO”) is appointed and if records of the processing activities are being maintained. In the new General Data Protection Regulation (“GDPR”), this approach has been privileged over the traditional notification requirement. The EU legislator is hereby trying to increase the accountability of the data controllers by replacing the notification obligation with alternative obligations. In this contribution, we will focus on the two main alternative obligations shaping this new accountability principle: (i) the requirement to keep records, and (ii) the performance of data protection impact assessments (“DPIAs”). The specific role of the DPO will be discussed in a separate article later on.
Records of processing operations and cooperation with the DPAs
Each data controller must keep documentation on all aspects of the data processing operations under its responsibility. This broadly includes the information that must already be notified to the Belgian 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 recording obligation on data processors and compels both controllers and processors to cooperate with their DPA and make this documentation available upon request.
Furthermore, where proportionate in relation to the specific processing activities, the data controller must implement appropriate data protection policies. 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 of DPIAs for certain high-risk data processing operations such as activities that create a risk of discrimination, identify theft, fraud, or financial loss. A DPIA is in particular required in case of (i) a systematic and extensive evaluation of natural persons through automated processing activities (e.g., profiling) underlying decisions that produce legal effects or significantly affect the individual (this could potentially include web analysing tools, the creation of motion profiles by mobile applications, or the creation of personal profiles by social 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 using 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 to the rights and freedoms of the individuals whose data are being processed (the “data subjects”), and (iv) the measures envisaged 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 data protection authorities, as this has already been done by the CNIL in France.
In addition, where 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 responsibilities to this effect, 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 data protection authorities as appropriate.
Last, but not least, companies will need to check whether they have suitable technical and organisational 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 may 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 organisation concerned. This may have financial consequences on the smaller organisations and will inevitably 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.