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Data Protection Impact Assessments (DPIAs) Detailed Guidance

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Information Commissioner’s Office, “Guide to the GDPR”, retrieved on 14th July 2020, licensed under the Open Government Licence.

This guidance discusses Data Protection Impact Assessments (DPIAs) in detail. Read it if you have detailed questions not answered in the Guide, or if you need a deeper understanding to help you understand or complete a DPIA in practice. DPOs and those with specific data protection responsibilities in larger organisations are likely to find it useful.

The guidance has been revised to adopt the European Data Protection Board’s 22/2018 opinion on the ICO’s list (see Examples of processing ‘likely to result in high risk’) of processing operations subject to the requirement of conducting a DPIA.

If you haven’t yet read DPIAs in brief in the Guide to GDPR, you should read that first. It sets out the key points you need to know, along with practical checklists to help you comply.

  • What’s new under the GDPR?

    In detail

    Yes, the GDPR includes a new obligation to conduct a DPIA for types of processing likely to result in a high risk to individuals’ interests.

    This is part of the new focus on accountability and being able to demonstrate that you comply with the GDPR. It is a key element of data protection by design and by default, and also reflects the more risk-based approach to data protection obligations taken throughout the GDPR.

    Privacy impact assessments (PIAs) have been used for many years as a good practice measure to identify and minimise privacy risks associated with new projects. DPIAs are very similar to PIAs, so if you already carry out PIAs in accordance with our PIA code under DPA 1998, the new process will be very familiar.

    However, you will need to review and adapt your internal policies, processes and procedures to ensure they meet the requirements for DPIAs under the GDPR. The key changes include:

    • DPIAs are mandatory for any processing likely to result in a high risk (including some specified types of processing). You need to review your screening questions to make sure you comply with the new requirements.
    • You must consider the impact on any of an individuals’ rights and freedoms, including (but not limited to) privacy rights.
    • There are more specific requirements for the content of a DPIA.
    • You must seek the advice of your data protection officer (DPO), if you have one. You should also seek the views of people whose data you intend to process, or their representatives, where appropriate.
    • If after doing a DPIA you conclude that there is a high risk and you cannot mitigate that risk, you must formally consult the ICO before you can start the processing.

    If you don’t have an existing PIA process, you need to ensure you understand DPIA requirements and embed them into your business practices. If you are likely to do many DPIAs, consider using this guidance as a starting point to design a bespoke DPIA process to meet your specific needs and fit in with your existing practices.

    You should also review your existing processing operations to identify whether you already do anything that would be considered likely to result in high risk under the GDPR. If so, are you confident you have already adequately assessed and mitigated your project’s risks? If not, you may need to conduct a DPIA now to ensure the processing complies with the GDPR.

    However, the ICO does not expect you to do a new DPIA for existing processing where you have already considered relevant risks and safeguards (whether as part of a PIA or another formal or informal risk-assessment process) – unless the nature, scope, context or purposes of the processing have changed significantly since that previous assessment.

    To help you demonstrate compliance if challenged, we recommend that you document your review and your reasons for not conducting a new DPIA where relevant.

    Further reading - European Data Protection Board

    WP29 produced guidelines on data protection impact assessments, which have been endorsed by the EDPB.

  • What is a DPIA?

    In detail

    A DPIA is a process designed to help you systematically analyse, identify and minimise the data protection risks of a project or plan. It is a key part of your accountability obligations under the GDPR, and when done properly helps you assess and demonstrate how you comply with all of your data protection obligations.

    It does not have to eradicate all risk, but should help you minimise and determine whether or not the level of risk is acceptable in the circumstances, taking into account the benefits of what you want to achieve.

    DPIAs are designed to be a flexible and scalable tool that you can apply to a wide range of sectors and projects. Conducting a DPIA does not have to be complex or time-consuming in every case, but there must be a level of rigour in proportion to the privacy risks arising.

    There is no definitive DPIA template that you must follow. You can use ICO's suggested template if you wish, or you may want to develop your own template and process to suit your particular needs, using this guidance as a starting point.

    DPIAs are an essential part of your accountability obligations. Conducting a DPIA is a legal requirement for any type of processing, including certain specified types of processing that are likely to result in a high risk to the rights and freedoms of individuals. Under GDPR, failure to carry out a DPIA when required may leave you open to enforcement action, including a fine of up to €10 million, or 2% global annual turnover if higher.

    By considering the risks related to your intended processing before you begin, you also support compliance with another general obligation under GDPR: data protection by design and default.

    Article 25 is clear that:

    “the controller shall, both at the time of the determination of the means for processing and at the time of the processing itself, implement appropriate technical and organisational measures… and … integrate the necessary safeguards into the processing in order to meet the requirements of this Regulation and protect the rights of data subjects.”

    In general, consistent use of DPIAs increases the awareness of privacy and data protection issues within your organisation. It also ensures that all relevant staff involved in designing projects think about privacy at the early stages and adopt a ‘data protection by design’ approach.

    A DPIA also brings broader compliance benefits, as it can be an effective way to assess and demonstrate your compliance with all data protection principles and obligations.

    However, DPIAs are not just a compliance exercise. An effective DPIA allows you to identify and fix problems at an early stage, bringing broader benefits for both individuals and your organisation.

    It can reassure individuals that you are protecting their interests and have reduced any negative impact on them as much as you can. In some cases the consultation process for a DPIA gives them a chance to have some say in the way their information is used. Conducting and publishing a DPIA can also improve transparency and make it easier for individuals to understand how and why you are using their information

    In turn, this can create potential benefits for your reputation and relationships with individuals. Conducting a DPIA can help you to build trust and engagement with the people using your services, and improve your understanding of their needs, concerns and expectations.

    There can also be financial benefits. Identifying a problem early on generally means a simpler and less costly solution, as well as avoiding potential reputational damage later on. A DPIA can also reduce the ongoing costs of a project by minimising the amount of information you collect where possible, and devising more straightforward processes for staff.

    In more detail – ICO guidance

    Read the ICO guidance on the Article 25 requirement to implement data protection by design and default.

    A DPIA can cover a single processing operation, or a group of similar processing operations. You may even be able to rely on an existing DPIA if it covered a similar processing operation with similar risks. A group of controllers can also do a joint DPIA for a group project or industry-wide initiative.

    For new technologies, you may be able to use a DPIA done by the product developer to inform your own DPIA on your implementation plans.

    You can use an effective DPIA throughout the development and implementation of a project or proposal, embedded into existing project management or other organisational processes.

    For new projects, DPIAs are a vital part of data protection by design. They build in data protection compliance at an early stage, when there is most scope for influencing how the proposal is developed and implemented.

    However, it’s important to remember that DPIAs are also relevant if you are planning to make changes to an existing system. In this case you must ensure that you do the DPIA at a point when there is a realistic opportunity to influence those plans. Recital 84 of the GDPR is clear that:

    “the outcome of the assessment should be taken into account when determining the appropriate measures to be taken in order to demonstrate that the processing of personal data complies with this Regulation.”

    In other words, a DPIA is not simply a rubber stamp or a technicality as part of a sign-off process. It’s vital to integrate the outcomes of your DPIA back into your project plan.

    You should not view a DPIA as a one-off exercise to file away. A DPIA is a ‘living’ process to help you manage and review the risks of the processing and the measures you’ve put in place on an ongoing basis. You need to keep it under review and reassess if anything changes.

    In particular, if you make any significant changes to how or why you process personal data, or to the amount of data you collect, you need to show that your DPIA assesses any new risks. An external change to the wider context of the processing should also prompt you to review your DPIA. For example, if a new security flaw is identified, new technology is made available, or a new public concern is raised over the type of processing you do or the vulnerability of a particular group of data subjects.

    Further reading - European Data Protection Board

    WP29 produced guidelines on data protection impact assessments, which have been endorsed by the EDPB.

    There is no explicit definition of ‘risk’ in the GDPR, but the various provisions on DPIAs make clear that this is about the risks to individuals’ interests. Article 35 says that a DPIA must consider “risks to the rights and freedoms of natural persons”. This includes risks to privacy and data protection rights, but also effects on other fundamental rights and interests.

    The key provision here is Recital 75, which links risk to the concept of potential harm or damage to individuals:

    “The risk to the rights and freedoms of natural persons, of varying likelihood and severity, may result from data processing which could lead to physical, material or non-material damage, in particular: where the processing may give rise to discrimination, identity theft or fraud, financial loss, damage to the reputation, loss of confidentiality of personal data protected by professional secrecy, unauthorised reversal of pseudonymisation, or any other significant economic or social disadvantage; where data subjects might be deprived of their rights and freedoms or prevented from exercising control over their personal data…”

    The focus is therefore on any potential harm to individuals. However, the risk-based approach is not just about actual damage and should also look at the possibility for more intangible harm. It includes any “significant economic or social disadvantage”.

    The impact on society as a whole may also be a relevant risk factor. For example, it may be a significant risk if your intended processing leads to a loss of public trust.

    A DPIA must assess the level of risk, and in particular whether it is ‘high risk’. The GDPR is clear that assessing the level of risk involves looking at both the likelihood and the severity of the potential harm.

    For more guidance on what this all means in practice, see the section on how to carry out a DPIA.

    Further reading - European Data Protection Board

    WP29 produced guidelines on data protection impact assessments, which have been endorsed by the EDPB.

    See also the working party’s Statement on the role of a risk-based approach in data protection legal frameworks (WP218, 30 May 2014).

  • When do we need to do a DPIA?

    In detail

    Article 35(1) says that you must do a DPIA where a type of processing is likely to result in a high risk to the rights and freedoms of individuals:

    “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 controller shall, prior to the processing, carry out an assessment of the impact of the envisaged processing operations on the protection of personal data. A single assessment may address a set of similar processing operations that present similar high risks.”

    Risk in this context is about the potential for any significant physical, material or non-material harm to individuals. See What is a DPIA? for more information on the nature of the risk.

    To assess whether something is ‘high risk’, the GDPR is clear that you need to consider both the likelihood and severity of any potential harm to individuals. ‘Risk’ implies a more than remote chance of some harm. ‘High risk’ implies a higher threshold, either because the harm is more likely, or because the potential harm is more severe, or a combination of the two. Assessing the likelihood of risk in that sense is part of the job of a DPIA.

    However, the question for these initial screening purposes is whether the processing is of a type likely to result in a high risk.

    The GDPR doesn’t define ‘likely to result in high risk’. However, the important point here is not whether the processing is actually high risk or likely to result in harm – that is the job of the DPIA itself to assess in detail. Instead, the question is a more high-level screening test: are there features which point to the potential for high risk? You are screening for any red flags which indicate that you need to do a DPIA to look at the risk (including the likelihood and severity of potential harm) in more detail.

    Article 35(3) lists three examples of types of processing that automatically requires a DPIA, and the ICO has published a list under Article 35(4) setting out ten more. There are also European guidelines with some criteria to help you identify other likely high risk processing.

    This does not mean that these types of processing are always high risk, or are always likely to cause harm – just that there is a reasonable chance they may be high risk and so a DPIA is required to assess the level of risk in more detail.

    If your intended processing is not described under GDPR, Article 35(3) the ICO list or European guidelines then ultimately, it’s up to you to decide whether your processing is of a type likely to result in high risk, taking into account the nature, scope, context and purposes of the processing. If in any doubt, we would always recommend that you do a DPIA to ensure compliance and encourage best practice.

    Article 35(3) sets out three types of processing which always require a DPIA:

    • Systematic and extensive profiling with significant effects:

    “(a) any 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.”

    • Large scale use of sensitive data:

    “(b) processing on a large scale of special categories of data referred to in Article 9(1), or of personal data relating to criminal convictions and offences referred to in Article 10.”

    • Public monitoring:

    “(c) a systematic monitoring of a publicly accessible area on a large scale.”

    The Article 29 working party of EU data protection authorities (WP29) published guidelines with nine criteria which may act as indicators of likely high risk processing:

    • Evaluation or scoring.
    • Automated decision-making with legal or similar significant effect.
    • Systematic monitoring.
    • Sensitive data or data of a highly personal nature.
    • Data processed on a large scale.
    • Matching or combining datasets.
    • Data concerning vulnerable data subjects.
    • Innovative use or applying new technological or organisational solutions.
    • Preventing data subjects from exercising a right or using a service or contract.

    For more guidance on these factors, read the WP29 guidelines (WP248). They give background on the reasoning for the high-risk indicators, and examples of processing likely to result in high risk.

    In most cases, a combination of two of these factors indicates the need for a DPIA. However, this is not a strict rule.

    You may be able to justify a decision not to carry out a DPIA if you are confident that the processing is nevertheless unlikely to result in a high risk, but you should document your reasons.

    On the other hand, in some cases you may need to do a DPIA if only one factor is present – and it is good practice to do so.

    Further reading - European Data Protection Board 

    WP29 produced guidelines on data protection impact assessments, which have been endorsed by the EDPB.

    The ICO is required by Article 35(4) to publish a list of processing operations that require a DPIA. This list complements and further specifies the criteria referred to in the European guidelines. Some of these operations require a DPIA automatically, and some only when they occur in combination with one of the other items, or any of the criteria in the European Guidelines referred to above:

    1. Innovative technology: processing involving the use of innovative technologies, or the novel application of existing technologies (including AI). A DPIA is required where this processing is combined with any of the criteria from the European guidelines.
    2. Denial of service: Decisions about an individual’s access to a product, service, opportunity or benefit that is based to any extent on automated decision-making (including profiling) or involves the processing of special category data.
    3. Large-scale profiling: any profiling of individuals on a large scale.
    4. Biometrics: any processing of biometric data. A DPIA is required where this processing is combined with any of the criteria from the European guidelines.
    5. Genetic data: any processing of genetic data, other than that processed  by an individual GP or health professional for the provision of health care direct to the data subject. A DPIA is required where this processing is combined with any of the criteria from the European guidelines.
    6. Data matching: combining, comparing or matching personal data obtained from multiple sources.
    7. Invisible processing: processing of personal data that has not been obtained direct from the data subject in circumstances where the controller considers that compliance with Article 14 would prove impossible or involve disproportionate effort. A DPIA is required where this processing is combined with any of the criteria from the European guidelines.
    8. Tracking: processing which involves tracking an individual’s geolocation or behaviour, including but not limited to the online environment. A DPIA is required where this processing is combined with any of the criteria from the European guidelines.
    9. Targeting of children or other vulnerable individuals: the use of the personal data of children or other vulnerable individuals for marketing purposes, profiling or other automated decision-making, or if you intend to offer online services directly to children.
    10. Risk of physical harm: where the processing is of such a nature that a personal data breach could jeopardise the [physical] health or safety of individuals.

    You should also be aware that the data protection authorities in other EU member states will publish lists of the types of processing that require a DPIA in their jurisdiction.

    In more detail – ICO guidance

    For indicative examples of operations that require a DPIA, and further detail on which criteria are high risk in combination with others, read Examples of processing ‘likely to result in high risk’.

    Recital 91 says innovative technology concerns new developments in technological knowledge in the world at large, rather than technology that is new to you, and its use can trigger the need to carry out a DPIA. This is because using such technology can involve novel forms of data collection and use, possibly with a high risk to individuals’ rights and freedoms. The personal and social consequences of deploying a new technology may be unknown, and a DPIA can help the controller to understand a control such risks.

    Examples of processing using innovative technology include:

    • artificial intelligence, machine learning and deep learning;
    • connected and autonomous vehicles;
    • intelligent transport systems;
    • smart technologies (including wearables);
    • market research involving neuro-measurement (e.g. emotional response analysis and brain activity);
    • some ‘internet of things’ applications, depending on the specific circumstances of the processing.

    It is not just cutting-edge technology that might be classed as innovative. If a controller implements existing technology in a new way, this could result in  high risks that, unless a DPIA is done, may not be identified and dealt with. For example, doing a DPIA as part of a project to design and deploy a large-scale database system that processes customer details could:

    • help in deciding what proportionate security measures should be implemented (e.g. protective monitoring);
    • and act as a reminder that GDPR-compliant contracts need to be in place with any processors.

    The ICO list of high-risk processing operations requires a DPIA if your processing involves innovative technology in combination with another criterion from the European guidelines (e.g. evaluation or scoring, or sensitive data).

    However, in some cases you may decide that your intended use of innovative technology requires a DPIA without any other factors. As controller, if no mandatory obligation applies, you are responsible for assessing whether your intended processing is ‘likely to result in high risk’.

    Further reading 

    Read ICO paper on paper on big data, artificial intelligence, machine learning and data protection. It contains further guidance on application of these technologies in a data protection context.

    Again, the GDPR does not define ‘systematic’ or ‘systematic and extensive’.

    There is some guidance on the meaning of ‘systematic’ in European guidelines on the DPO provisions. The DPO guidelines say that ‘systematic’ means that the processing:

    • occurs according to a system;
    • is pre-arranged, organised or methodical;
    • takes place as part of a general plan for data collection; or
    • is carried out as part of a strategy.

    The term ‘extensive’ implies that the processing also covers a large area, involves a wide range of data or affects a large number of individuals.

    Further reading – European Data Protection Board      

    The Article 29 working party of European data protection authorities has adopted Guidelines on Data Protection Officers ('DPOs') (WP243) that contain guidance on the meaning of the term ‘systematic’.

    The GDPR does not define the concept of a legal or similarly significant effect. However, Article 29 working-party guidelines on this phrase in the context of profiling provisions give some further guidance.

    In short, it is something that has a noticeable impact on an individual and can significantly affect their circumstances, behaviour or choices.

    A legal effect is something that affects a person’s legal status or legal rights. A similarly significant effect might include something that affects a person’s financial status, health, reputation, access to services or other economic or social opportunities.

    Decisions that have little impact generally could still significantly affect more vulnerable people, such as children.

    In more detail – ICO guidance

    Read ICO guidance on profiling and automated decision-making  for more on legal and similarly significant effects.

    Read ICO guidance on children and the GDPR  for more on significant effects specifically regarding children and their personal data.

    Further reading – European Data Protection Board

    Read the WP29 Guidelines on automated individual decision-making and profiling for the purposes of Regulation 2016/679 (WP251). They contain guidance on legal and similarly significant effects.

    ‘Invisible processing’ occurs when you obtain personal data from somewhere other than directly from the individual themselves, and you don’t provide them with the privacy information required by Article 14. The processing is ‘invisible’ because the individual is unaware that you are collecting and using their personal data, even if you publish a privacy notice on your website.

    This processing results in a risk to the individual’s interests as they cannot exercise any control over your use of their data. In particular, they are unable to use their data protection rights if they are unaware of the processing. This is true even if the processing itself is unlikely to have any negative effect.

    You may also be at risk of breaching the fairness and transparency requirements of the first data protection principle if the processing, or any outcome from it, may not be reasonably foreseen by the individual.

    For these reasons, processing in this way is only permitted by the GDPR in limited circumstances. These include where to provide the privacy information proves impossible or would involve a disproportionate effort.

    Circumstances when it is impossible to provide privacy will only arise rarely, for example where you have no contact details for individuals and have no reasonable means of obtaining them.

    It is important that you can demonstrate compliance with individuals’ right to be informed. So, if you are proposing processing operations that involve the use of data obtained from third parties, you must first carefully consider whether you can provide privacy information to the individuals. If you intend to rely on the exception for disproportionate effort, you must be able to justify this, and you must take other measures to protect people’s rights. In particular, you must still publish your privacy information, and carry out a DPIA.

    Your DPIA will help you assess and demonstrate whether you are taking a proportionate approach. It will help you consider how best to mitigate the impact on individuals’ ability to exercise control over their data, and whether you can take other measures to support the exercise of their rights. It will also help you demonstrate how you comply with fairness and transparency requirements.

    In more detail – ICO guidance

    Read the ICO guidance on the right to be informed, which includes a section on disproportionate effort and other exceptions and exemptions.

    Further reading – European Data Protection Board

    See the WP29 guidelines on Transparency, which have been endorsed by the EDPB.

    Individuals can be vulnerable where circumstances may restrict their ability to freely consent or object to the processing of their personal data, or to understand its implications.

    Most obviously, children are regarded as vulnerable to the processing of their personal data since they may be less able to understand how their data is being used, anticipate how this might affect them, and protect themselves against any unwanted consequences. This can also be true of other vulnerable sections of the population such as elderly people, or those with certain disabilities.

    Even if the individuals are not part of a group you might automatically consider vulnerable, an imbalance of power in their relationship with you can cause vulnerability for data protection purposes if they believe that they will be disadvantaged if the processing doesn’t go ahead.

    One group who may count as vulnerable in this sense are employees. The European guidelines on DPIAs (WP248) explain why employees could be considered vulnerable data subjects where a power imbalance means they cannot easily consent or object to the processing of their data by an employer. This type of vulnerability could also arise due to an individual’s financial situation (e.g. credit rating) or the specific context of the processing (e.g. patients receiving medical care).

    Processing the data of individuals who may be deemed vulnerable is one of the criteria in European guidelines for processing likely to result in high risk. If you think your processing will involve vulnerable individuals, then a DPIA will be required should any of the other criteria, or operations on our list, be engaged.

    Example

    A sales firm provides company cars for their employees, and intends to deploy vehicles with location-tracking features, allowing managers to monitor the movement and whereabouts of their employees at all times. Employees are also permitted to use the vehicles for their private purposes outside working hours.

    The processing intends to track each individual’s geolocation, in a context where they are vulnerable to a power imbalance with the controller. So this engages the requirement for a DPIA to identify and mitigate the risks to the employees’ rights and freedoms.

    In more detail – ICO guidance

    Read ICO guidance on children and the GDPR for more on consent and the extra protections for children.

    Further reading – European Data Protection Board

    WP29 produced guidelines on data protection impact assessments, which have been endorsed by the EDPB.

    Read the WP29 Opinion 2/2017 on data processing at work for more on the processing of personal data in an employment context.

    Again, the GDPR does not contain a definition of large-scale processing, but to decide whether processing is on a large scale you should consider:

    • the number of individuals concerned;
    • the volume of data;
    • the variety of data;
    • the duration of the processing; and
    • the geographical extent of the processing.

    Examples of large-scale processing include:

    • a hospital (but not an individual doctor) processing patient data;
    • tracking individuals using a city’s public transport system;
    • a fast food chain tracking real-time location of its customers;
    • an insurance company or bank processing customer data;
    • a search engine processing data for behavioural advertising; or
    • a telephone or internet service provider processing user data.

    Individual professionals processing patient or client data are not processing on a large scale.

    Further reading – European Data Protection Board

    WP29 produced guidelines on data protection impact assessments, which have been endorsed by the EDPB.

    Also read the WP29 Guidelines on Data Protection Officers (‘DPOs’) (WP243)

    You may not have to carry out a DPIA if:

    • You are processing on the basis of legal obligation or public task. However, this exception only applies if:
      • you have a clear statutory basis for the processing;
      • the legal provision or a statutory code specifically provides for and regulates the processing operation in question;
      • you are not subject to other obligations to complete DPIAs derived from specific legislation, such as Digital Economy Act 2017; or
      • a data protection risk assessment was carried out as part of the impact assessment when the legislation was adopted. This may not always be clear. So in the absence of any clear and authoritative statement on whether such an assessment was done, we recommend you err on the side of caution and do a DPIA to ensure you consider how best to mitigate any high risk.
    • You have already done a substantially similar DPIA. You need to be confident that you can demonstrate that the nature, scope, context and purposes of the processing are all similar.
    • The ICO issues a list of processing operations which do not require a DPIA. We have the power to establish this type of list, but we have not done so yet. We may consider a list in future in the light of our experience of how the DPIA provisions are being interpreted in practice.

    Further reading – European Data Protection Board

    WP29 produced guidelines on data protection impact assessments, which have been endorsed by the EDPB.

  • How do we do a DPIA?

    In detail

    A DPIA should begin early in the life of a project, before you start your processing, and run alongside the planning and development process. It should include these steps:

    • Step 1: identify the need for a DPIA
    • Step 2: describe the processing
    • Step 3: consider consultation
    • Step 4: assess necessity and proportionality
    • Step 5: identify and assess risks
    • Step 6: identify measures to mitigate the risks
    • Step 7: sign off and record outcomes

    After sign-off you should integrate the outcomes from your DPIA back into your project plan, and keep your DPIA under review. Throughout this process, you should consult individuals and other stakeholders as needed.

    The DPIA process is designed to be flexible and scalable. You can design a process that fits with your existing approach to managing risks and projects, as long as it contains these key elements.

    You can also scale the time and resources needed for a DPIA to fit the nature of the project. It does not need to be a time-consuming process in every case.

    Further reading

    WP29 produced guidelines on data protection impact assessments, which have been endorsed by the EDPB. Annex 2 sets out a checklist of criteria for an acceptable DPIA.

    You can use or adapt ICO sample DPIA template if you wish.

    You don’t have to use this template. You can make your own to suit your needs, or use an existing project-management method, as long as it covers all the key elements of the process. If you are making your own template, you may find it helpful to refer to the Criteria for an acceptable DPIA in Annex 2 of the Article 29 working party guidelines.

    You can decide who has responsibility for carrying out DPIAs in your organisation, and who signs them off. You can outsource your DPIA, but you remain responsible for it. If you have a Data Protection Officer (DPO), you must ask for their advice on your DPIA, and document it as part of the process.

    You may want to ask a processor to carry out a DPIA on your behalf if they do the relevant processing operation, but again you remain responsible for it.

    As well as the business area or individual who is leading on the project or process requiring the DPIA, you should also involve:

    • a DPO, if you have one;
    • information security staff;
    • any processors; and
    • legal advisors or other experts, where relevant.

    Further reading

    WP29 produced guidelines on data protection impact assessments, which have been endorsed by the EDPB.

    If you have a DPO, you must seek their advice. The DPO should provide advice on:

    • whether you need to do a DPIA;
    • how you should do a DPIA;
    • whether to outsource the DPIA or do it in-house;
    • what measures and safeguards you can take to mitigate risks;
    • whether you’ve done the DPIA correctly; and
    • the outcome of the DPIA and whether the processing can go ahead.

    You should record your DPO’s advice on the DPIA. If you don’t follow their advice, you should record your reasons and ensure you can justify your decision.

    DPOs must also monitor the DPIA’s ongoing performance, including how well you have implemented your planned actions to address the risks.

    Under Article 39 of GDPR, DPOs have specific tasks regarding DPIAs. This is why you must ensure that any responsibilities you give a DPO for your DPIA do not conflict with their ability to complete these tasks in an independent manner, as required by Recital 97.

    In more detail – ICO guidance

    Read ICO guidance on data protection officers for more detail on the tasks for DPOs regarding DPIAs.

    Further reading – European Data Protection Board

    Read the WP29 Guidelines on Data Protection Officers (WP243).

    Ask your DPO for advice. If you have any major project that involves the use of personal data, it is good practice to do a DPIA. If you already intend to do a DPIA, go straight to step 2.

    Otherwise, you need to check whether your processing is on the list of types of processing that automatically require a DPIA. If not, you need to screen for other factors that may indicate it is a type of processing that is likely to result in high risk, such as processing the data of vulnerable individuals.

    You can use or adapt the checklists at the end of this guidance to help you do this screening. You can also read ‘When do we need to do a DPIA?’ for more guidance.

    If you do this screening and decide a DPIA is not needed, you should document your decision and the reasons for it, including your DPO’s advice. This does not have to be a burdensome paperwork exercise. It just needs to help you demonstrate you have properly considered and complied with your DPIA obligations. For example, you could simply keep an annotated copy of the checklist.

    If you are in any doubt, we strongly recommend you do a DPIA.

    Describe how and why you plan to use the personal data. Your description must include “the nature, scope, context and purposes of the processing”.

    The nature of the processing is what you plan to do with the personal data. This should include, for example:

    • how you collect the data;
    • how you store the data;
    • how you use the data;
    • who has access to the data;
    • who you share the data with;
    • whether you use any processors;
    • retention periods;
    • security measures;
    • whether you are using any new technologies;
    • whether you are using any novel types of processing; and
    • which screening criteria you flagged as likely high risk.

    The scope of the processing is what the processing covers. This should include, for example:

    • the nature of the personal data;
    • the volume and variety of the personal data;
    • the sensitivity of the personal data;
    • the extent and frequency of the processing;
    • the duration of the processing;
    • the number of data subjects involved; and
    • the geographical area covered.

    The context of the processing is the wider picture, including internal and external factors which might affect expectations or impact. This might include, for example:

    • the source of the data;
    • the nature of your relationship with the individuals;
    • how far individuals have control over their data;
    • how far individuals are likely to expect the processing;
    • whether these individuals include children or other vulnerable people;
    • any previous experience of this type of processing;
    • any relevant advances in technology or security;
    • any current issues of public concern;
    • in due course, whether you comply with any GDPR codes of conduct (once any have been approved under Article 40) or GDPR certification schemes;and
    • whether you have considered and complied with relevant codes of practice.

    The purpose of the processing is the reason why you want to process the personal data. This should include:

    • your legitimate interests, where relevant;
    • the intended outcome for individuals; and
    • the expected benefits for you or for society as a whole.

    You should seek and document the views of individuals (or their representatives) unless there is a good reason not to.

    In most cases it should be possible to consult individuals in some form. However, if you decide this is not appropriate, you should record this decision as part of your DPIA, with a clear explanation. For example, you may be able to demonstrate that consultation would compromise commercial confidentiality, undermine security, or be disproportionate or impracticable.

    If the DPIA covers the processing of personal data of existing contacts (for example, existing customers or employees), you should design a consultation process to seek the views of those particular individuals, or their representatives.

    If the DPIA covers a plan to collect the personal data of individuals you have not yet identified, you may need to carry out a more general public- consultation process, or targeted research. This could take the form of market research with a certain demographic or contacting relevant campaign or consumer groups for their views.

    If your DPIA decision differs from the views of individuals, you need to document your reasons for disregarding their views.

    Further reading

    WP29 produced guidelines on data protection impact assessments, which have been endorsed by the EDPB.

    If you use a data processor, you may need to ask them for information and assistance. Your contracts with processors should require them to assist.

    You should consult all relevant internal stakeholders, in particular anyone with responsibility for information security.

    We also recommend you consider seeking legal advice or advice from other independent experts such as IT experts, sociologists or ethicists where appropriate. However, there are no specific requirements to do so.

    You should consider:

    • Do your plans help to achieve your purpose?
    • Is there any other reasonable way to achieve the same result?

    The Article 29 guidelines also say you should include how you  ensure data protection compliance, which are a good measure of necessity and proportionality. In particular, you should include relevant details of:

    • your lawful basis for the processing;
    • how you will prevent function creep;
    • how you intend to ensure data quality;
    • how you intend to ensure data minimisation;
    • how you intend to provide privacy information to individuals;
    • how you implement and support individuals' rights;
    • measures to ensure your processors comply; and
    • safeguards for international transfers.

    Consider the potential impact on individuals and any harm or damage your processing may cause – whether physical, emotional or material. In particular, look at whether the processing could contribute to:

    • inability to exercise rights (including but not limited to privacy rights);
    • inability to access services or opportunities;
    • loss of control over the use of personal data;
    • discrimination;
    • identity theft or fraud;
    • financial loss;
    • reputational damage;
    • physical harm;
    • loss of confidentiality;
    • re-identification of pseudonymised data; or
    • any other significant economic or social disadvantage

    You should include an assessment of the security risks, including sources of risk and the potential impact of each type of breach (including illegitimate access to, modification of or loss of personal data).

    To assess whether the risk is a high risk, you need to consider both the likelihood and severity of the possible harm. Harm does not have to be inevitable to qualify as a risk or a high risk. It must be more than remote, but any significant possibility of very serious harm may still be enough to qualify as a high risk. Equally, a high probability of widespread but more minor harm may still count as high risk.

    You must make an objective assessment of the risks. It is helpful to use a structured matrix to think about likelihood and severity of risks:

    The above matrix shows a structured way to assess risk. Your organisation may use a different method you can adapt for the same purpose.

    You may also want to consider your own corporate risks, such as the impact of regulatory action, reputational damage or loss of public trust.

    Against each risk identified, record its source. You should then consider options for reducing that risk. For example:

    • deciding not to collect certain types of data;
    • reducing the scope of the processing;
    • reducing retention periods;
    • taking additional technological security measures;
    • training staff to ensure risks are anticipated and managed;
    • anonymising or pseudonymising data where possible;
    • writing internal guidance or processes to avoid risks;
    • using a different technology;
    • putting clear data-sharing agreements into place;
    • making changes to privacy notices;
    • offering individuals the chance to opt out where appropriate; or
    • implementing new systems to help individuals to exercise their rights.

    This is not an exhaustive list, and you may be able to devise other ways to help reduce or avoid the risks. You should ask your DPO for advice.

    Record whether the measure would reduce or eliminate the risk. You can take into account the costs and benefits of each measure when deciding whether or not they are appropriate.

    You should then record:

    • what additional measures you plan to take;
    • whether each risk has been eliminated, reduced, or accepted;
    • the overall level of ‘residual risk’ after taking additional measures; and
    • whether you need to consult the ICO.

    You do not always have to eliminate every risk. You may decide that some risks, and even a high risk, are acceptable given the benefits of the processing and the difficulties of mitigation. However, if there is still a high risk, you need to consult the ICO before you can go ahead with the processing.

    As part of the sign-off process, you should seek and document DPO advice on whether the processing is compliant and can go ahead. If you decide not to follow their advice, you need to record your reasons.

    You should also record any reasons for going against the views of individuals or other consultees.

    You must integrate the outcomes of your DPIA into your project plans. You should identify any action points and who is responsible for implementing them. You can use the usual project-management process to ensure these are followed through.

    You should monitor the ongoing performance of the DPIA. You may need to cycle through the process again before your plans are finalised.

    If you have decided to accept a high risk, either because it is not possible to mitigate or because the costs of mitigation are too high, you must consult the ICO before you go ahead with the processing. See the 'Do we need to consult the ICO?' section for more information on this consultation process.

    To aid transparency and accountability, it is good practice to publish your DPIA. This could help foster trust in your processing activities, and improve individuals’ ability to exercise their rights. If you are concerned that publication may reveal commercially sensitive information, undermine security or cause other risks, you should consider whether you can redact (black out) or remove sensitive details, or publish a summary.

    When considering publishing DPIAs, public authorities should think about their wider transparency obligations, such as complying with the Freedom of Information Act. Before GDPR, many public authorities included privacy impact assessments in their definition documents for publication schemes.

    You need to keep your DPIA under review. You may need to repeat it if there is a substantial change to the nature, scope, context or purposes of your processing.

    Further reading

    WP29 produced guidelines on data protection impact assessments, which have been endorsed by the EDPB.

  • Do we need to consult the ICO?

    In detail

    If you have carried out a DPIA that identifies a high risk and you cannot do anything to reduce it, prior consultation with the ICO is required under GDPR. You cannot go ahead with the processing until you have consulted us.

    The focus is on the ‘residual risk’ after you have taken any mitigating measures. If your DPIA identified a high risk but you have done things to reduce the risk so it is no longer high, you need not consult the ICO.

    Send to the ICO a copy of your submission. You must include:

    • a description of the respective roles and responsibilities of any joint controllers or processors;
    • the purposes and methods of the intended processing;
    • the measures and safeguards taken to protect individuals;
    • contact details of your DPO (if you have one); and
    • a copy of the DPIA.

    When the ICO receives your DPIA, they will send you an acknowledgement and check we have all the information we need.

    The ICO will write to you to within 10 days to let you know if they have accepted your DPIA for prior consultation. They will explain their reasoning.

    You may not hear from the ICO again until they provide their written advice. If the ICO have further queries, they may make contact to arrange a telephone call or meeting with you.

    The ICO may wish to discuss your proposed processing with you, even if your DPIA does not meet the criteria for prior consultation. If so, the ICO will explain to you how they would like to engage with you.

    If the ICO accept your DPIA, they don’t just look at the risks you documented. The ICO consider all of your submission – your DPIA documentation and any further information you provided – along with any prior contact you may have had with ICO office.

    The ICO seek to understand in detail the context and nature of the processing you are proposing, including any controller-processor relationships. They will also assess the extent to which you have evidenced compliance with the Data Protection Principles.

    To do this effectively, the ICO may need to ask you to give us more information.

    Where the ICO provide advice under the prior consultation process, they will get back to you within eight weeks of receipt of your DPIA. In complex cases, they can extend this to a maximum of 14 weeks. If they need to extend the deadline, they will tell you within one month of the date you submitted your DPIA. They will explain their reasons.

    If the ICO needs to ask for more information, they cannot continue their assessment until you provide it. To prevent further delay, please ensure you include any documents your assessment refers to, such as privacy notices.

    If your intended processing operation would affect data subjects in EU member states, the ICO may be required to co-operate with other data protection authorities before providing our written advice, in line with Chapter VII GDPR. This may mean your case cannot be resolved in 14 weeks. They will notify you if this occurs and keep you updated.

    The ICO may come to the view, based on your DPIA, that risks have been sufficiently identified and mitigated, and that you may proceed with the processing.

    The ICO written response could be limited to advice on how you can further mitigate identified risks before you proceed with your processing.

    In some circumstances, the ICO may also issue an official warning, a new corrective power under GDPR, alongside any advice they provide. The ICO will issue warnings where they are concerned that your intended processing is likely to contravene GDPR. Any warning will explain the reasons for their concerns, and the steps the ICO recommend you take to avoid any contravention.

    If the ICO have more significant concerns, they may impose a limitation or ban on your intended processing.

    In any outcome, the ICO written response to you will make clear what you may and may not do.

    Warnings are not subject to appeal, but you may seek judicial review if you disagree with the way the ICO made the decision.

    You can seek a review of other corrective measures (such as limitations or bans on processing) by appeal to the First Tier Tribunal.

    More information on appeals against the Information Commissioner can be found here (external link).

  • Examples of processing ‘likely to result in high risk’

    The following list details processing operations for which the ICO requires you to complete a DPIA as they are ‘likely to result in high risk’. It is based on guidelines adopted by the European Data Protection Board (EDPB) on DPIAs (WP248rev01). Our list therefore complements and further specifies these guidelines.

    For illustration, we have also included examples of existing areas of application. These should not be taken as definitive or exhaustive. In any event, this list does not affect your overriding obligation in Article 35(1), which is to assess any proposed processing operation against the requirement to complete DPIAs. The ICO also considers it best practice to do a DPIA, whether or not the processing is likely to result in a high risk.

    Type of processing operation(s) requiring a DPIA  Description Non-exhaustive examples of existing areas of application
    Innovative technology Processing involving the use of new technologies, or the novel application of existing technologies (including AI).

    A DPIA is required for any intended processing operation(s) involving innovative use of technologies (or applying new technological and/or organisational solutions) when combined with any other criterion from WP248rev01.

    • Artificial intelligence, machine learning and deep learning
    • Connected and autonomous vehicles
    • Intelligent transport systems
    • Smart technologies
      (including wearables)
    • Market research involving neuro-measurement (i.e. emotional response analysis and brain activity)
    • Some IoT applications, depending on the specific circumstances of the processing
    Denial of service Decisions about an individual’s access to a product, service, opportunity or benefit which are based to any extent on automated decision-making (including profiling) or involves the processing of special- category data.
    • Credit checks
    • Mortgage or insurance applications
    • Other pre-check processes related to contracts (i.e. smartphones)
    Large-scale profiling Any profiling of individuals on a large scale
    • Data processed by Smart Meters or IoT applications
    • Hardware/software offering fitness/lifestyle monitoring
    • Social-media networks
    • Application of AI to existing process
    Biometric data  Any processing of biometric data for the purpose of uniquely identifying an individual.

    A DPIA is required for any intended processing operation(s) involving biometric data for the purpose of uniquely identifying an individual, when combined with any other criterion from WP248rev01

    • Facial recognition systems
    • Workplace access systems/identity verification
    • Access control/identity verification for hardware/applications (including voice recognition/fingerprint/facial recognition)
    Genetic data  Any processing of genetic data, other than that processed by an individual GP or health professional for the provision of health care direct to the data subject.

    A DPIA is required for any intended processing operation(s) involving genetic data when combined with any other criterion from WP248rev01

    • Medical diagnosis
    • DNA testing
    • Medical research
    Data matching Combining, comparing or matching personal data obtained from multiple sources
    • Fraud prevention
    • Direct marketing
    • Monitoring personal use/uptake of statutory services or benefits
    • Federated identity assurance services
    Invisible processing Processing of personal data that has not been obtained direct from the data subject in circumstances where the controller considers that compliance with Article 14 would prove impossible or involve disproportionate effort (as provided by Article 14.5(b).

    A DPIA is required for any intended processing operation(s) involving where the controller is relying on Article 14.5(b) when combined with any other criterion from WP248rev01

    • List brokering
    • Direct marketing
    • Online tracking by third parties
    • Online advertising
    • Data aggregation/data aggregation platforms
    • Re-use of publicly available data
    Tracking Processing which involves tracking an individual’s geolocation or behaviour, including but not limited to the online environment.

    A DPIA is required for any intended processing operation involving geolocation data when combined with any other criterion from WP248rev01

    • Social networks, software applications
    • Hardware/software offering fitness/lifestyle/health monitoring
    • IoT devices, applications and platforms
    • Online advertising
    • Web and cross-device tracking
    • Data aggregation / data aggregation platforms
    • Eye tracking
    • Data processing at the workplace
    • Data processing in the context of home and remote working
    • Processing location data of employees
    • Loyalty schemes
    • Tracing services (tele-matching, tele-appending)
    • Wealth profiling – identification of high net-worth individuals for the purposes of direct marketing

     

    Targeting of children/other vulnerable individuals for marketing, profiling for auto decision making or the offer of online services The use of the personal data of children or other vulnerable individuals for marketing purposes, profiling or other automated decision-making, or if you intend to offer online services directly to children.
    • Connected toys
    • Social networks
    Risk of physical harm  Where the processing is of such a nature that a personal data breach could jeopardise the [physical] health or safety of individuals.
    • Whistleblowing/complaint procedures
    • Social care records

     

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