IAPP CIPP-E - Certified Information Privacy Professional/Europe (CIPP/E)

According to the Treaty on European Union (TEU), the European Parliament shall, jointly with the Council, exercise legislative and budgetary functions. It shall also exercise functions of political control and consultation as laid down in the Treaties1. The Council of the European Union, also known as the Council, is the institution that represents the governments of the Member States. Together with the European Parliament, it adopts European legislation and coordinates the policies of the Member States2. The other options are not correct because: (A) The European Commission is the institution that proposes and implements EU policies, ensures the application of EU law, and represents the Union in international affairs3; (B) The Article 29 Working Party was an advisory body composed of representatives of the national data protection authorities, the European Data Protection Supervisor and the European Commission. It was replaced by the European Data Protection Board in 20184; (D) The European Data Protection Board is an independent body that ensures the consistent application of the General Data Protection Regulation and promotes cooperation among the national data protection authorities5. References: 1: Article 14(1) of the TEU; 2: The Council of the European Union; 3: The European Commission; 4: Article 29 Working Party; 5: [European Data Protection Board].

According to Article 37(2) of the GDPR, a group of undertakings may appoint a single data protection officer (DPO) provided that the DPO is easily accessible from each establishment12. This means that the DPO should be able to communicate effectively with the data subjects and the supervisory authorities in the relevant languages and jurisdictions, and to perform the tasks referred to in Article 39 of the GDPR34. The accessibility of the DPO does not necessarily depend on the physical location of the DPO, but rather on the availability of the DPO to the relevant stakeholders via various means of communication34. Therefore, the DPO does not have to be located in the country where the data controller has its main establishment, nor does the group of undertakings have to obtain approval from a supervisory authority or be comprised of organizations of similar sizes and functions to appoint a single DPO. References: CIPP/E Certification - International Association of Privacy Professionals, Free CIPP/E Study Guide - International Association of Privacy Professionals, GDPR - EUR-Lex, What’s different about a group data protection officer?, Data Protection Officers: What US Companies Need to Know - Cooley

The General Data Protection Regulation (GDPR) does not prohibit surveillance of employees in the workplace. Still, it requires employers to follow special rules to ensure that the rights and freedoms of employees are protected when processing their personal data. The GDPR applies to any processing of personal data in the context of the activities of an establishment of a controller or a processor in the EU, regardless of whether the processing takes place in the EU or not. The GDPR also applies to the processing of personal data of data subjects who are in the EU by a controller or processor not established in the EU, where the processing activities are related to the offering of goods or services to data subjects in the EU or the monitoring of their behaviour as far as their behaviour takes place within the EU.

The GDPR requires that any processing of personal data must be lawful, fair and transparent, and based on one of the six legal grounds specified in the regulation. The most relevant legal grounds for employee surveillance are the legitimate interests of the employer, the performance of a contract with the employee, or the compliance with a legal obligation. The GDPR also requires that any processing of personal data must be limited to what is necessary for the purposes for which they are processed, and that the data subjects must be informed of the purposes and the legal basis of the processing, as well as their rights and the safeguards in place to protect their data.

The GDPR also imposes specific obligations and restrictions on the processing of special categories of personal data, such as biometric data, which reveal racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, or which are processed for the purpose of uniquely identifying a natural person. The processing of such data is prohibited, unless one of the ten exceptions listed in the regulation applies. The most relevant exceptions for employee surveillance are the explicit consent of the data subject, the necessity for the purposes of carrying out the obligations and exercising specific rights of the controller or of the data subject in the field of employment and social security and social protection law, or the necessity for reasons of substantial public interest.

The GDPR also sets out the rules and requirements for the transfer of personal data to third countries or international organisations, which do not ensure an adequate level of data protection. The transfer of such data is only allowed if the controller or processor has provided appropriate safeguards, such as binding corporate rules, standard contractual clauses, codes of conduct or certification mechanisms, and if the data subjects have enforceable rights and effective legal remedies.

The GDPR also establishes the principle of storage limitation, which requires that personal data must be kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed. The GDPR does not specify a precise time limit for the storage of personal data, but leaves it to the controller to determine the appropriate retention period, taking into account the nature, scope, context and purposes of the processing, as well as the risks for the rights and freedoms of data subjects. The GDPR also allows for the further storage of personal data for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, subject to appropriate safeguards.

Based on the scenario, after fixing the privacy problems, Gentle Hedgehog may store the monitoring data as long as stated in the privacy policy that all employees must follow when processing personal data. This option is the most consistent with the GDPR’s principles and requirements, as it:

Is based on a valid legal ground for the processing of personal data, namely the legitimate interests of the employer to ensure the productivity, quality and security of the work performed by the employees, as well as the performance of a contract with the employees and the compliance with a legal obligation to prevent fraud and protect confidential information.

Is limited to what is necessary for the purposes of the monitoring, as it only covers the work-related activities and communications of the employees, and excludes the private or personal ones.

Is transparent to the employees, as it informs them of the monitoring and its precise scope, and gives them the opportunity to object or opt out of the monitoring.

Does not involve the processing of special categories of personal data, such as biometric data or data revealing political opinions or trade union membership, which are not necessary or proportionate for the purposes of the monitoring, and which do not fall under any of the exceptions listed in the regulation.

Does not involve the transfer of personal data to a third country, such as China, which does not provide an adequate level of data protection, and which may pose additional risks for the rights and freedoms of the employees.

Respects the principle of storage limitation, as it specifies the retention period of the personal data, and deletes or anonymises the data when they are no longer needed for the purposes of the monitoring.

The other options listed in the question are not valid conditions for storing the monitoring data, as they:

Are not based on a valid legal ground for the processing of personal data, as they either rely on the consent of the employees, which is not freely given, informed and specific, or on the compliance with a legal obligation, which does not apply to the storage of personal data.

Are not limited to what is necessary for the purposes of the monitoring, as they involve the storage of personal data for longer than required by the legitimate interests of the employer, the performance of a contract with the employees, or the legal obligation to prevent fraud and protect confidential information.

Are not transparent to the employees, as they do not inform them of the retention period of the personal data, and do not give them the opportunity to request the erasure of the data.

Do not respect the principle of storage limitation, as they do not specify the retention period of the personal data, and do not delete or anonymise the data when they are no longer needed for the purposes of the monitoring.

References:

GDPR, Articles 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 44, 45, 46, 47, 48, and 49.

EDPB Guidelines 3/2019 on processing of personal data through video devices, pages 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14.

EDPB Guidelines 07/2020 on the concepts of controller and processor in the GDPR, pages 19, 20, 21, 22, 23, 24, 25, 26, 27, and 28.

EDPB Guidelines 4/2019 on Article 25 Data Protection by Design and by Default, pages 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, and 28.

EDPB Guidelines 2/2018 on derogations of Article 49 under Regulation 2016/679, pages 4, 5, 6, 7, 8, 9, 10, 11, and 12.

Data protection: GDPR and employee surveilance | Feature | Law Gazette, paragraphs 1, 2, 3, 4, 5, 6, 7, and 8.

According to the UK GDPR, consent means “any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her” 1. One of the requirements for consent to be informed is that the data subject should be aware of the identity of the controller who is processing the personal data 2. In this scenario, Ms. Iman only gave consent to Liem to process her personal data for marketing purposes, but she was not informed that JaphSoft, a third-party controller, would also access and process her personal data. Therefore, her consent was not valid in regard to JaphSoft, as she did not know who was processing her personal data and for what purposes. References:

UK GDPR Article 4 (11)

UK GDPR Recital 42

According to the GDPR, consent is one of the lawful bases for processing personal data1. Consent means any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her2. Therefore, consent must be specific to each purpose of processing and cannot be bundled with other purposes3. If a company wants to use personal data for a new purpose that is not compatible with the original purpose for which consent was given, it must obtain a new consent from the data subjects for the new processing4. Simply informing the data subjects of the new purpose or updating the privacy notice is not sufficient, as it does not imply the data subject’s agreement to the new processing. Proceeding with the new processing without obtaining a new consent would be unlawful and could result in fines and sanctions5. References:

Free CIPP/E Study Guide, page 23, section 4.1.1

GDPR, Article 4 (11)

GDPR, Recital 32

GDPR, Article 6 (4)

GDPR, Article 83 (5) (a)

 The GDPR requires that personal data be kept for no longer than is necessary for the purposes for which the personal data are processed1. However, the GDPR also allows member states to provide for more specific rules on the processing of employees’ personal data in the employment context, including the retention periods for erasure and deletion of categories of personal data2. Therefore, the employer should securely store the data that is required to be kept under local law, such as tax records, pension records, or health and safety records34. The employer should also ensure that the data is protected from unauthorized or unlawful access, accidental loss, destruction, or damage1. The employer should not store the data for longer than necessary or for purposes other than those for which the data was collected, unless the employee has given consent or there is another legal basis for doing so13. References: 1: Article 5 of the GDPR 2: Article 88 of the GDPR 3: Data Protection and GDPR in the Workplace | Factsheets | CIPD 4: How to Manage the Retention of Employee Data | GDPR Blog

According to the Free CIPP/E Study Guide, page 14, “the GDPR requires controllers to carry out a data protection impact assessment (DPIA) prior to processing 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 GDPR also provides a list of examples of processing operations that require a DPIA, such as “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” (Article 35(3)(a)). Therefore, the fact that Dynaroux plans to undertake profiling of its customers through analysis of their purchasing patterns would trigger a DPIA under the GDPR, as it involves a systematic and extensive evaluation of personal aspects based on automated processing that may significantly affect the customers. The other options are not necessarily cases where a DPIA is required, although they may involve other obligations under the GDPR, such as obtaining a valid legal basis, providing adequate safeguards, or informing the data subjects. References:

Free CIPP/E Study Guide, page 14

GDPR, Article 35