Data Protection Officers Must Not Have A Conflict Of Interest – Part 2

Under the European General Data Protection Regulation many companies will be required to appoint a Data Protection Officer. Violating the requirements relating to the appointment of a DPO can be sanctioned with fines of up to EUR 10 million or up to 2 percent of the total worldwide annual turnover, whichever is higher. So, who do you appoint as your DPO?

For part 1 click here.

Under the European General Data Protection Regulation (GDPR), which will start to apply on 25 May 2018, many companies will be required to appoint a Data Protection Officer (DPO). Violating the requirements relating to the appointment of a DPO can be sanctioned with fines of up to EUR 10 million or up to 2 percent of the total worldwide annual turnover, whichever is higher. So, who do you appoint as your DPO?

Companies may choose to appoint an employee of the company as an internal DPO or a professional data privacy advisor as an external DPO. The appointed DPO must have the necessary knowledge and expertise in data protection law and must be reliable as well as independent. When is a DPO reliable and independent? This is not always a straightforward question in practice and it makes sense to look at how this requirement is interpreted to date in Germany, where companies have long been required to appoint a DPO.

According to the current interpretation of the existing German data protection law, the DPO must not have any duties which conflict with the monitoring obligations of the DPO. The Bavarian Data Protection Authority (BayLDA) takes the position in its recent activity report (German only) that members of the legal department may in certain cases have a conflict of interest which disqualifies those individuals from acting as DPO. In particular, if the legal counsel may represent the company in a legal proceeding (especially with regard to legal actions against employees or customers, which may include data privacy related aspects), the legal counsel is subject to a...

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