Data Protection Officer according to GDPR

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by André Mendes Costa, masters student at University of Minho
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In an ever changing world of information technologies, privacy and data protection inevitably attracts considerable attention.

The Portuguese Data Protection Law and the EU Directive 95/46 will be soon replaced by a new European and National legal framework. In fact, the new General Data Protection Regulation (GDPR) alters profoundly the paradigm of the personal data protection legal regime. The 679/2016 Regulation (GDPR) is part of a new European community legislative package which also includes a directive that lays down the procedures for dealing with personal data by the competent authorities for the purposes of prevention, research, detection and prosecution of criminal offences or the execution of criminal penalties. The Regulation came into force on 25th May and establishes a vacancy period of 2 years, providing the necessary time for the public and private sectors to equip themselves to face the new regulatory demands.

This brief analysis concentrates on the post of the data protection officer (DPO), on his/her duties and competencies and on those entities who are responsible for his/her appointment.

In the new European legislation there is an important change of paradigm in the protection of personal data namely the suppression – with a few exceptions contained in the Regulation – of the requisite of pre notification to the National Commission of Data Protection (NCDP). This change assigns to the person responsible for the processing of data the onus of legal guarantor of his/her cases, thus fully observing the Regulation. In fact, in the cases where there is no prior notification to the competent authority (NCDP), the Regulation has found other forms of guarantying that the processing of personal data is legally protected by creating the post of a data protection officer (DPO).
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Editorial of January 2017

 

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by Joana Covelo de Abreu, Junior Editor
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New year’s resolutions: digital single market in 2017 – the year of interoperability

Digital Single Market is one of the major political goals for EU and its Member States since digital tools have shaped, for the past last decade, how economy behaves and how economic growth is relying on IT tools. In fact, digital economy can create growth and employment all across our continent. On the other hand, digital mechanisms cover almost every economic field, from transportation to clothes, from movies to sports since online platforms have the ability to create and shape new markets, challenging traditional ones.

The Digital Agenda for Europe (DAE) is one of the initiatives under Europe 2020 Strategy and it aims to promote economic growth and social benefits by achieving the digital single market. So it is named as one of the secondary public interests that must be pursued by European administration – both national public administrations (when they apply EU law and act as European functioning administrations) and European institutions and, in that sense, especially national public administrations must feel engaged to promote this end and objective, otherwise if those are the ones to firstly resist to innovation, Internal Market adaptation to new framework standards will suffer and economic prosperity in Europe can be undermined.

Therefore, EU has created several mechanisms to foster interoperability solutions that would bring together institutions, national public administrations, companies and individuals. In this context, interoperability stands for “the ability of disparate and diverse organizations to interact towards mutually beneficial and agreed common goals, involving the sharing of information and knowledge between organizations, through the business processes they support, by means of the exchange of data between their respective ICT systems”. It demands and implies an effective interconnection between digital components where standardization has an essential role to play in increasing the interoperability of new technologies within the Digital Single Market. It aims to facilitate access to data and services in a protected and interoperable environment, promoting fair competition and data protection.

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Editorial of June 2016

 

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by João Marques, Lawyer and member of the 
Portuguese Data Protection National Commission

The right to be remembered – Directive 95/46/CE begins its twilight and makes way for the new General Data Protection Regulation (GDPR)

It was on May the 4th that the EU paradigm regarding personal data protection started to write its chapter in the common book of legal unification. As the Regulation (EU) 2016/679 [together with Directive (EU) 2016/680] finally got published in the Official Journal of the EU, a new era is jumpstarted. The first “victim” of the new paradigm is the old Directive 95/46/CE, which for the past 20 years has served European citizens honourably.

Although it faced a challenging task, Directive 95/46/EC was generally capable of protecting EU citizens against the predatory instincts of our world regarding their personal data. A suitable testament in this regard is the fact that the principles enshrined in Chapter 2 of the Directive have been, for the most part, kept almost unchanged. Lawful processing, purpose specification and limitation, data quality, fair processing and accountability remain as the bedrock of data protection under the new legal framework.

As ever, the CJEU case-law has been of paramount importance in the consolidation of a European perspective in which the citizen’s fundamental rights are at the forefront of the Union’s responsibilities, with the recent case C-362/14 (Schrems V. Data Protection Commissioner and Digital Rights Ireland Ltd) being yet another example of the approach for which the court is well known.

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