The European Union’s General Data Protection Regulation (GDPR) emphasizes the importance of data protection, requiring organizations and companies to pay particular attention to the legitimacy and security of the processing of personal data. One of the key requirements of the GDPR is the appointment of a data protection officer (DPO) in companies with such obligations. This role must ensure that the company complies with all data protection rules. It has become a common practice among SMEs for the role to be assigned to a CEO/management board member carrying out other duties, but there are several reasons why a management board member should not be appointed as DPO. The GDPR requires the DPO to have direct access to the management, but this does not mean that the roles of the DPO and the management team overlap.
Conflict of interest
One of the main reasons why a board member should not fulfill the role of data protection officer is conflict of interest. The GDPR requires the DPO to perform their duties independently and objectively. Board members are responsible for strategic objectives and business decisions that may conflict with data protection requirements. For example, situations may arise where a board member has to choose between restrictive data protection measures and commercial interests.
Independence and autonomy
According to Article 38 of the GDPR, the DPO must be independent in the performance of their duties and must not receive instructions about the performance of their duties. As a member of the management board, the person is directly involved in the management and control of the company, which may limit their ability to act independently. In addition, a board member may feel pressured to make decisions that are beneficial to the company’s owners and/or management, but may not be in line with data protection best practices.
Resources and powers
The DPO must be provided with adequate resources and authority to carry out their duties effectively. A member of the management board may have other priorities and responsibilities that may hinder their ability to devote sufficient time and resources to data protection issues.
Competences and specific knowledge
The role of a data protection officer requires specialist knowledge of data protection law and practice. While a board member may have broad knowledge and experience in management, they may not have specific expertise in data protection. It is therefore important that the role of data protection officer is filled by a person with the relevant expertise and experience.
Trust and transparency
GDPR compliance is closely linked to the transparency and credibility of a company’s operations. If the DPO is a member of the management board, this may raise doubts among employees and the public about their independence and objectivity. Separating the role of the DPO from that of management can help to ensure transparency and accountability of data protection processes.
In Summary
There are several compelling reasons why a member of the management board should not also be in the role of data protection officer. A high level of data protection can only be achieved if the DPO is independent and committed to the effective implementation of data protection practices.
Attorneys Julia Gramma and Tiina Pukk have extensive experience in data protection and privacy laws and offer companies a monthly fee-based data protection specialist service.
Contact for details and fee offers info@corelega.eu