IP & Technology

As part of its on-going programme of guidance under the General Data Protection Regulation (GDPR), the Article 29 Working Party (WP29) has published draft guidance on data protection impact assessments (DPIAs).

Whilst DPIAs (or PIAs) have been advocated as best practice by the UK’s Information Commissioner’s Office (ICO) for a number of years, anecdotal evidence suggests that not many organisations carry out DPIAs as a matter of routine. The ICO’s current guidance on PIAs is available on the ICO website.

Under the GDPR, DPIAs will mandatory for certain types of processing. The WP29’s draft guidance sets out how the national supervisory authorities intend to interpret the new requirements. The guidance also considers what might be considered “high risk” processing under the GDPR.

What is a DPIA?

A DPIA is a process to help organisations identify, assess and mitigate or minimise privacy risks with data processing activities – for example, the launch of a new product or the adoption of a new practice or policy or system. It is also relevant to decisions to, for example, outsource a service or function to a third party or to undertake internal reorganisations (for example, the centralisation of an HR function or IT systems in a multinational business).

A DPIA is an integral part of privacy by design, another best practice principle adopted by the GDPR, and is a key component in helping an organisation to comply with its obligation to demonstrate with the GDPR. Under the GDPR, a DPIA should set out:

  • a description of the envisaged processing operations and the purposes of the processing
  • an assessment of the necessity and proportionality of the processing
  • an assessment of the risks to the rights and freedoms of data subjects
  • the measures envisaged to address the risks and demonstrate compliance with the GDPR

Organisations should have appropriate policies in place within their organisations to ensure that a DPIA is considered in relation to any new processing activities and, where a DPIA is to be performed, how it will be carried out.

The WP29 guidance sets out criteria that organisations can use to assess whether or not a DPIA, or a methodology to carry out a DPIA is sufficiently comprehensive to comply with the GDPR.

In what situations must an organisation undertake a DPIA?

The GDPR requires that organisations carry out a DPIA where the processing is likely to result in a “high risk” to the rights and freedoms of data subjects. The obligation to conduct a DPIA is on the data controller.

The GDPR expressly references the use of new technologies, systematic and extensive evaluation using automated processing, large scale processing of special category (sensitive) personal data and “systematic monitoring of a publicly accessible area on a large scale” as examples of things that might constitute high risk processing. The DPIA should be carried out prior to commencing the processing.

The WP29 guidance expands on this to give some non-exhaustive examples such as credit monitoring, genetic testing, the use of communications or location data, matching or combining datasets, processing data concerning vulnerable data subjects (such as employees), and using innovative technology such as fingerprint recognition.

However, given the benefits, the WP29 also emphasises that a DPIA should be considered whenever an organisation is considering a new project and if the organisation decides not to carry out a DPIA then it should document why.

Do I need to carry out a DPIA for existing processing activities?

No – unless there is a material change in risk. However, given that the WP29 recommends that DPIAs are regularly reviewed (at least every three years), you should plan to carry out a DPIA for existing activities in due course.

When should a DPIA be carried out?

As early as possible in relation to any new project, so that its findings and recommendations can be incorporated into the design of the processing operation. Organisations should also revisit their DPIAs as a project progresses, the issues identified and risk mitigation plans to ensure that they remain up to date.

Who should be involved in producing a DPIA?

If an organisation has a Data Protection Officer (DPO), then the DPO should play a key role in carrying out a DPIA. The WP29 expects that organisations with a DPO will seek the advice of the DPO and document that, and the decisions taken, in the DPIA.

Where data is being processed by a data processor, the processor should assist the data controller in carrying out the DPIA – for example by providing information on the processor’s practices and systems.

Finally, the GDPR requires organisations to “where appropriate” seek the views of data subjects and their representatives. This might require consultation with, for example employees or customers. The WP29 suggests that this could be done in a number of ways – for example:

  • an internal or external study
  • in the case of employees, formal consultation with staff representatives/unions
  • in the case of customers/consumers, a survey sent to prospective customers

The WP29 considers that if organisations decide not to consult with data subjects then they should document why. They should also document the outcome of the consultation, including the reasons for any decision that differs from the views expressed by data subjects.

Is there any requirement to consult with the ICO?

If a DPIA indicates that processing would result in a high risk, and it is not possible to adopt measures to mitigate those risks, then the GDPR requires that organisations consult with the relevant supervisory authority (in the UK, the ICO).

The WP29 gives the example of a proposal to store personal data on laptop computers. If the organisation adopts appropriate data security measures (for example, full disk encryption, access control and secured back-ups), then the risks will have been mitigated and there would be no need to consult with the relevant supervisory authority.

Is there an obligation to publish DPIAs?

In line with the transparency obligations under the GDPR, the WP29 recommends that organisations consider publishing their DPIAs – either in full or by way of a summary. The WP29 emphasises that publishing a DPIA can be helpful in fostering trust, particularly where the processing affects members of the public.

Where can I find the WP29’s draft guidance on DPIAs?

The draft guidance can be downloaded from the WP29 website.

To discuss how the GDPR impacts on your organisation and what you should be doing to prepare, please get in touch with me or another member of our Data Protection & Information Law team or visit our GDPR Hub.

Martin Sloan

Partner at Brodies LLP
Martin is a partner in Brodies Technology, Information and Outsourcing group and has wide experience of advising clients on technology procurement and IT and business process outsourcing projects. Martin also advises on data protection, and general technology and intellectual property law, and has a particular interest in the laws applying to social media and new technology such as mobile apps, contactless/mobile payments, and smart metering.