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Understanding data protection law can be tricky for most business owners. This is because our data protection rules, including the General Data Protection Regulation (GDPR), are lengthy and complex. Many businesses also worry about the power of the Information Commissioner’s Office (ICO) to fine organisations up to £17.5m for breaches of the GDPR. However, it is your legal duty to comply with data protection rules, so you must understand them. This is where a data protection officer could be beneficial for your business to avoid expensive mistakes when processing personal and sensitive information. This article will explain why your business should have a data protection officer in England.
Complying With Legal Requirements
A Data Protection Officer (DPO) is not only beneficial for your business; there is a legal requirement for some companies to appoint one. The GDPR requires an organisation to appoint a DPO where they:
- engage in the regular monitoring of individuals (whether staff or the public);
- process data relating to past criminal convictions; or
- handle ‘special categories of data’.
The last reason catches most businesses, so potentially yours. The phrase ‘special categories of data’ has a broad definition. For example, any of the following tasks can constitute the handling of special categories of data:
- processing information regarding an individual’s trade union membership (or political party membership);
- processing information regarding an individual’s health, genetics, sex life or sexual orientation;
- processing sensitive data concerning race, religion or nationality; or
- processing biometric data (such as iris data or fingerprint scans).
Therefore, your business should have a DPO if it is caught by the legal requirement. While you probably only need one DPO in your organisation, if it is large or carries out large-scale data processing every month, you may appoint more than one.
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Ensuring Data Protection Compliance
A Data Protection Officer provides your business with expertise concerning data protection matters. This means they understand the relevant legislation and how to comply with the most critical data protection requirements. Their expertise should limit the chance of your business breaching the GDPR. Data protection rules should be second nature to DPOs and, if appointed, should be involved in all your company’s data processing activities. One example of such expertise could include them carrying out a Data Protection Impact Assessment for your company (to allow it to process ‘high risk’ data). As referenced above, the GDPR broadly defines ‘special categories of data’. For example, if your business asks users to create an account and enter their email and home address, you will handle this type of data.
In this way, a Data Protection Officer ensures that your business meets its data protection obligations and collects and stores certain data safely. This is a huge benefit, given that the ICO takes a dim view of organisations that fail to handle special categories of data with due care and attention.
Furthermore, if your organisation commits an unintentional breach of the GDPR, you can point to the fact that you appointed a DPO as a mitigating factor. Your business could argue that the violation was unintentional because the appointment of the DPO was a clear step in aiming to comply with the rules. Sometimes the ICO accepts arguments of this nature, which can help reduce potential fines.
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Improving Contact With the ICO
Over time, your business may need to contact the Information Commissioner’s Office. This may be due to an ICO investigation or to report a data breach. If your company has a DPO, they can act as your contact with the ICO and, by doing so, potentially limit any potential damage such as by:
- responding promptly;
- demonstrating your business has an understanding of data protection rules; and
- using the correct language.
This can lead to the ICO taking no action against your organisation or at least reducing any enforcement action, such as a reduction in a fine.
Key Takeaways
Appointing a DPO is a good way of safely ensuring that your company processes personal data lawfully. Your company may have no choice but to appoint a DPO where your business meets specific legal rules. Even if you do not meet such criteria, appointing a DPO should assist your business with data protection compliance such as by giving you a clear understanding of the rules, such as the GDPR.
If you need help with data protection requirements and the appointment of a DPO, our experienced data, privacy and IT lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 0808 196 8584 or visit our membership page.
Frequently Asked Questions
Yes, it can. However, you are only likely to need more than one DPO if your organisation is large or carries out large-scale data processing every month.
A DPO is a person you appoint to your business to assist you with your legal data protection obligation. They should have expertise in this area and can be your main point of contact with the ICO.
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