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Why You Should Consider DPO-as-a-service for Your Business

Posted on by Darragh Reynolds
DPO GDPR
12
Jul

What is a DPO?

Having the appropriate data protection mechanisms in place can help you avoid data breaches and costly GDPR fines. In 2022, the Data Protection Commission reported in its annual report that it had conducted 17 large-scale investigations, with administrative fines in excess of €1billion and multiple reprimands and compliance orders imposed.

If your business processes the personal data of EU citizens, you need to comply with the General Data Protection Regulation (GDPR). This means you have to start by understanding the cycle of data flows in and out of your business. Once you have established this, a risk assessment will help to identify and mitigate the potential threats to the privacy and security of the data you collect, store and use.

When do you need a DPO?

Depending on the size and nature of your business, you may also have to appoint a Data Protection Officer (DPO) to oversee and monitor your GDPR compliance. A DPO is an independent expert who advises you on data protection issues, liaises with the data protection authorities, and handles data subject requests and complaints.

GDPR formally sets out under Section 4 the designation, position and tasks of the Data Protection Officer. Furthermore, the Data Protection Commissioner had published guidance with respect to the DPO role which comments that:

“The DPO role is an important GDPR innovation and cornerstone of the GDPR’s accountability-based compliance framework.”

Appointment of a DPO is mandatory for the following organisations:

  • Public bodies (consider private organisations carrying out public tasks)
  • Data controllers/processors who perform systematic and regular monitoring of data subjects on a large scale.
  • Organisations whose processing involves special category data (medical data for instance) or data relating to criminal convictions and offences on a large scale.

Large-scale in this context can be interpreted when taking into consideration, the number of affected data subjects, the volume of personal data, geographical exposure and the range and duration of the processing of personal data.

As a matter of best practice, all organisations should have documented their rationale as to whether a DPO is required to be nominated.  Formally appointing a DPO where it’s not mandatory,  still brings the role under the full GDPR requirements and standards. A DPO is required only in certain circumstances particularly where there is large-scale processing of personal information and data, and where a public body is processing personal data. When you do appoint a DPO you must register with the Data Protection Commissioner.

Regardless of whether the GDPR requires organisations to appoint a DPO, data controllers and processors must ensure that their organisations have sufficient staff and resources to discharge their obligations under the GDPR. However, a DPO can help organisations operate within the law by advising and helping to monitor compliance. In this way, a DPO can be seen to play a key role in the organisation’s data protection governance structure and to help improve accountability.

Under the GDPR the DPO is afforded statutory protections:

  • DPO must report to the highest level of management.
  • DPO cannot be dismissed or penalised as a result of performing their duties.
  • DPO must be provided with adequate resources to perform tasks.
  • DPO must be free from influence and conflicts of interest.
  • DPO is involved, properly and in a timely manner, in all issues which relate to the protection of personal data.
  • BUT the data controller remains accountable for GDPR compliance.

Article 37.5 of the GDPR provides that a DPO “shall be designated on the basis of professional qualities and, in particular, expert knowledge of data protection law and practices”.

For example, where a data processing activity is particularly complex, or where a large volume or sensitive data is involved (i.e., an internet or insurance company), the DPO may need a higher level of expertise and support.

Data protection officer

What are the advantages and challenges of DPO as a service?

But hiring a DPO can be challenging and costly for many businesses. Large-scale companies and public bodies may have to process a lot of data and deal with complex data protection scenarios, requiring a full-time or part-time DPO with extensive experience and qualifications. Small and medium-sized enterprises (SMEs) may have low-scale data processing activities but still need to comply with the GDPR and even though they are not required by law to appoint a DPO, they will still have to ensure they have adequate policies in place to identify data breaches for example.

For SMEs, they might consider appointing a senior manager from the Finance team or board of management to lead data protection compliance, but this can create conflicts of interest and compromise the independence of the role. Moreover, the manager may not have the necessary skills, knowledge and time to perform the DP duties effectively.

That’s where DPO-as-a-service comes in. DPO-as-a-service is an outsourced solution that provides you with an external expert who can act as your point of contact for all data protection matters. You can benefit from the expertise and experience of a professional DPO without having to pay a full salary or invest in training and resources.

A DPO-as-a-service will help you map out your data processing activities, identify the key risks, and implement appropriate measures to ensure compliance. They will also assist you with responding to data subject requests, reporting data breaches, conducting data protection impact assessments, and updating your policies and procedures.

Summary of the main benefits of a DPO-as-a-Service:

  1. You can access the expertise and experience of a professional DPO without having to pay a full salary or invest in training and resources.
  2. You can ensure the independence and impartiality of the DPO role, avoiding conflicts of interest or interference from the management.
  3. You can save time, money and hassle by outsourcing your data protection responsibilities to an expert who can guide you through the GDPR requirements and best practices.
  4. You can enhance your reputation and trust with your customers, partners and regulators by demonstrating your commitment to data protection.
  5. You can focus on your core business activities while the DPO-as-a-service handles your data protection matters.

GDPR and data retention:

GDPR, which celebrated its 5-year anniversary on May 25th 2023,  gives you six lawful bases to process personal data: consent, contract, legal obligation, vital interest, public interest or legitimate interest. Here is a brief explanation of these requirements:

Lawful basis Definition Example
Consent Consent means that the data subject has given their clear and affirmative agreement to the processing of their personal data for a specific purpose. Consent must be freely given, informed, specific, and unambiguous. It must also be easy to withdraw at any time. Consent is usually appropriate when the data subject has a genuine choice and control over how their data is used, such as when signing up for a newsletter or a service.
Contract Contract means that the processing of personal data is necessary for the performance of a contract to which the data subject is a party, or to take steps at the request of the data subject before entering into a contract. Contract is usually appropriate when the processing is directly related to the contractual obligations or rights of the parties, such as when delivering goods or services, or providing customer support.
Legal obligation Legal obligation means that the processing of personal data is necessary for compliance with a legal obligation to which the controller is subject. Legal obligation is usually appropriate when the processing is mandated by law or regulation, such as when reporting taxes, keeping records, or cooperating with authorities.
Vital interest Vital interest means that the processing of personal data is necessary to protect the vital interests of the data subject or of another natural person. Vital interest is usually appropriate when the processing is essential for life-saving or emergency situations, such as when providing medical care, preventing harm, or ensuring public safety.
Public interest Public interest means that the processing of personal data is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller. Public interest is usually appropriate when the processing is related to a public function or service, such as when providing education, health care, social welfare, or administration.
Legitimate interest Legitimate interest means that the processing of personal data is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject. Legitimate interest is usually appropriate when the processing is reasonable and expected by the data subject, such as when maintaining business relationships, preventing fraud, or improving products or services. Where this purpose is being used it must be accompanied by a Legitimate Interest Assessment striking a balance between the data subject and the interests of the organisation.

Examples of data processing:

You need to justify the reason for processing personal data under one of these bases and document it accordingly. The DPO-as-a-service will help you determine the most appropriate lawful basis for each processing activity and ensure transparency and accountability. For example, within HR, the data controller is responsible for deciding how and why personal data is processed, such as the CVs of job applicants. The data processor is responsible for carrying out the processing on behalf of the controller, such as a recruitment agency. The DPO-as-a-service will advise you on how to comply with the GDPR principles and obligations when processing personal data for HR purposes.

Another example is marketing. If you collect personal data for marketing purposes, such as email addresses or preferences, you need to obtain consent from the data subjects, which must be managed accordingly in that consent can be withdrawn at any time and must be given freely and without ambiguity. The DPO-as-a-service will help you manage your consent records, review your marketing campaigns, and handle any opt-out requests or complaints.

Pro DPO Tip:

GDPR also requires you to keep personal data only for as long as necessary for the purposes for which it was collected. The less data you have, the less risk is involved. So only keep what you need and delete what you don’t. For compliance in certain industries, you may have a legal obligation to retain data for a specific period of time. The DPO-as-a-service will help you establish a retention policy that meets your legal and business needs.

How can CommSec Help?

As you can see, DPO-as-a-service can offer many advantages for your business. You can save time, money and hassle by outsourcing your data protection responsibilities to an expert who can guide you through the GDPR requirements and best practices. You can also enhance your reputation and trust with your customers, partners and regulators by demonstrating your commitment to data protection. CommSec is uniquely positioned to give advice on data protection as well as cyber security best practices giving you the best of both areas under one roof.

If you are interested in finding out more about DPO-as-a-service and how it can benefit your business, please contact us today. We would love to hear from you and answer any questions you may have.

Useful Data Protection Resources:

The Data Protection Commission 

Data Protection Commission publishes 2022 Annual Report

Data Protection Qualifications

Complete guide to GDPR compliance (EU)