Section 3

Data protection impact assessment and prior consultation

 

Authors: Jens Ambrock and Moritz Karg

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 para. 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 Art. 9 para. 1, or of personal data relating to criminal convictions and offences referred to in Art. 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 para. 1. The supervisory authority shall communicate those lists to the Board referred to in Art. 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 paras. 4 and 5, the competent supervisory authority shall apply the consistency mechanism referred to in Art. 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 para. 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 Art. 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 Art. 6 para. 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, paras. 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.

 

I. Preliminary remarks

The DPIA includes the examination of the effects of the processing of personal data on the rights and freedoms of the data subject and is seen as a manifestation of the so-called risk-based approach of the GDPR. It represents a kind of early warning system for the controllers as well as for the data subjects and competent SAs.

The GDPR does not define the term DPIA. It can be understood as a tool through which the risk to the rights and interests of data subjects caused by the processing of personal data is identified and assessed. The DPIA is intended by the Union legislator to be an effective mechanism to address those types of processing operations that are likely to present a high risk to the rights and freedoms of data subjects by virtue of their nature, their scope, their circumstances and their purposes (recital 89).

Impact assessments are nothing new as an instrument and have become e.g. an established part of the work of parliaments. In some European countries and beyond the use of processing technology on people’s rights and interests is to be evaluated by this instrument. However, the partly established understanding of the nature, scope and purpose of technology assessment does not necessarily have to be in line with the objective of Art. 35. The recourse to previous concepts of so-called privacy impact assessment, especially from the Anglo-American data protection law system, is problematic. They only inadequately capture the purpose of the DPIA as defined in Art. 35, because they consider the topic exclusively or primarily from the technical and organisational perspective. The GDPR does not adopt this concept. The telos and methodology of the DPIA must therefore be determined and developed as far as possible from the GDPR itself, which does not define the balancing process in a technical or organisational manner, but primarily in a legal way. Central starting point of the balancing process is the protection of the rights of the data subjects. Controllers are required to be aware of the consequences of the processing for the data subjects rather than for their own organisation.

It is also recognisable that the DPIA does not only lead to a risk management task, but also a risk minimisation obligation. The aim of the instrument is to take effective protective measures by identifying and assessing the risks to data subjects’ rights and freedoms posed by the processing and thereby to operationalise the protection of fundamental rights. This is because the controller is also required under para. 7 lit. d to evaluate the “measures envisaged to address the risk” (→ mn. 57). Therefore, the DPIA is not an end in itself or merely part of the transparency and documentation obligation. It also includes the assessment of measures actively taken to minimise the impact of data processing on data subjects.

II. Legislative history

The DPIA has been and is a component of data protection management at EU level, e.g. with the introduction of RFID technology or smart meters, as well as in individual countries. The concept was mainly adopted from environmental law. Based on experience especially from supervisory practice, the EU legislator decided to replace the existing notification obligations in Art. 18 et seq. DPD, which were ineffective and purely formalistic for the protection of data subjects’ rights, with effective and efficient instruments. Art. 33 Comm-P essentially corresponded to the provision’s current scope and structure. It was already apparent at this stage that the focus of the DPIA should be on assessing the risks to the rights and freedoms of the data subjects. According to the ideas of the Comm, a DPIA should be required if specific risks to the rights and freedoms of the data subjects were to be expected. The Parl-R took this idea and built on it. While Art. 33 para. 1 Comm-P referred in general terms to risks for the data subjects’ the rights and interests, Art. 33 para. 1 Parl-R specified that the right to the protection of personal data was to be taken into account “in particular” and thus made it clearer that the risk to other fundamental rights and freedoms was also to be taken into account. This broad approach was clearly limited by the Council-R. On the one hand, a DPIA should only be carried out if the processing is likely to pose a high risk to data subjects’ rights. Secondly, the Council limited the scope of the rights to be assessed in the risk assessment. Enumeratively, Art. 33 Council-R only named risks with regard to discrimination, identity theft or fraud, financial losses, damage to reputation, unauthorised reversal of pseudonymisation, loss of confidentiality of data subject to professional secrecy or other significant economic or social disadvantages. Ultimately, this narrow view could not prevail.

 

 

 

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