I am going to use a new tool. Do I always have to do a DPIA?

No. Paragraph 1 requires a DPIA only where the processing is likely to result in a high risk to the rights and freedoms of people, taking into account its nature, scope, context and purposes. Paragraph 3 names three cases where that is always so, and paragraph 4 requires the supervisory authority to publish a list of processing operations for which a DPIA is mandatory. Recital 91 gives the example that an individual physician or lawyer processing data of patients or clients is not processing on a large scale; if your tool falls under none of these, you still have to assess yourself whether a high risk is likely.

What exactly has to be in a DPIA?

Paragraph 7 lists four fixed elements: a systematic description of the processing and its purposes, an assessment of necessity and proportionality, an assessment of the risks to data subjects, and the measures to address those risks. Under paragraph 2 you seek the advice of your data protection officer while doing so. A single DPIA may cover a set of similar processing operations with similar risks (paragraph 1).

What do I do if the DPIA shows that the risk remains high?

Then you cannot simply start. Recital 84 and recital 94 say that you must consult the supervisory authority beforehand if you cannot reduce the high risk with reasonable measures; that consultation is set out in Article 36. If you can reduce the risk, you record the measures in the DPIA (paragraph 7(d)) and later check whether the processing still complies with it (paragraph 11).

Article 35: Data protection impact assessmentAI-relevant

Praxikon tracks Article 35 (Data protection impact assessment) under the GDPR, alongside the EU AI Act, citing the source for every statement.

Chapter IVIn force since 25-05-2018

Article 35 requires the controller to carry out a data protection impact assessment (DPIA) before starting a processing operation that is likely to result in a high risk to the rights and freedoms of people, in particular where new technologies are used (paragraph 1). Paragraph 3 names three situations in which such an assessment is always required: a systematic and extensive evaluation of personal aspects based on automated processing, including profiling, on which decisions are based that produce legal effects or similarly significantly affect the person; large-scale processing of special categories of data (Article 9) or criminal data (Article 10); and systematic large-scale monitoring of publicly accessible areas. Paragraph 7 sets out the minimum content: a description of the processing and its purposes, an assessment of necessity and proportionality, an assessment of the risks, and the measures to address those risks. The article exists because the old general duty to notify the supervisory authority was abolished and replaced by a targeted approach for the genuinely risky processing operations (recital 89). In this way the GDPR forces you to think through and reduce the risks before you start, rather than after something has gone wrong (recital 90).

Key term: Data protection impact assessment (DPIA): an upfront study of the risks a processing operation poses to the people concerned, and of the measures to reduce those risks

Directly affects:controllerprocessordata protection officerdata subjectsupervisory authorityBoardmember state

Praxikon’s reading of the text and the recitals; the official text below prevails.

AI Act intersection

The DPIA is complementary to the AI Act: high-risk classification (Art. 6) often also requires a DPIA, and the FRIA (Art. 27) is the AI-specific equivalent.

AI Act Art. 6 →AI Act Art. 27 →

Official text

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.

The controller shall seek the advice of the data protection officer, where designated, when carrying out a data protection impact assessment.

A data protection impact assessment referred to in paragraph 1 shall in particular be required in the case of: (a) 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; (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; or (c) a systematic monitoring of a publicly accessible area on a large scale.

The supervisory authority shall establish and make public a list of the kind of processing operations which are subject to the requirement for a data protection impact assessment pursuant to paragraph 1. The supervisory authority shall communicate those lists to the Board referred to in Article 68.

The supervisory authority may also establish and make public a list of the kind of processing operations for which no data protection impact assessment is required. The supervisory authority shall communicate those lists to the Board.

Prior to the adoption of the lists referred to in paragraphs 4 and 5, the competent supervisory authority shall apply the consistency mechanism referred to in Article 63 where such lists involve processing activities which are related to the offering of goods or services to data subjects or to the monitoring of their behaviour in several Member States, or may substantially affect the free movement of personal data within the Union.

The assessment shall contain at least: (a) a systematic description of the envisaged processing operations and the purposes of the processing, including, where applicable, the legitimate interest pursued by the controller; (b) an assessment of the necessity and proportionality of the processing operations in relation to the purposes; (c) an assessment of the risks to the rights and freedoms of data subjects referred to in paragraph 1; and (d) the measures envisaged to address the risks, including safeguards, security measures and mechanisms to ensure the protection of personal data and to demonstrate compliance with this Regulation taking into account the rights and legitimate interests of data subjects and other persons concerned.

Compliance with approved codes of conduct referred to in Article 40 by the relevant controllers or processors shall be taken into due account in assessing the impact of the processing operations performed by such controllers or processors, in particular for the purposes of a data protection impact assessment.

Where appropriate, the controller shall seek the views of data subjects or their representatives on the intended processing, without prejudice to the protection of commercial or public interests or the security of processing operations.

Where processing pursuant to point (c) or (e) of Article 6(1) has a legal basis in Union law or in the law of the Member State to which the controller is subject, that law regulates the specific processing operation or set of operations in question, and a data protection impact assessment has already been carried out as part of a general impact assessment in the context of the adoption of that legal basis, paragraphs 1 to 7 shall not apply unless Member States deem it to be necessary to carry out such an assessment prior to processing activities.

Where necessary, the controller shall carry out a review to assess if processing is performed in accordance with the data protection impact assessment at least when there is a change of the risk represented by processing operations.

Source: EUR-Lex, Regulation (EU) 2016/679. Official text, reproduced without modification.

What does this mean for you?

Controller

For every new or changed processing operation you assess whether it is likely to result in a high risk, and if so you complete a DPIA with the elements of paragraph 7 before you start. If, for example, you use an AI application that systematically and extensively profiles people and bases decisions on that profile that produce legal or similarly significant effects, you fall under paragraph 3(a). You seek the advice of your data protection officer (paragraph 2), ask data subjects for their views where appropriate (paragraph 9) and review the DPIA as soon as the risk changes (paragraph 11).

Processor

The article places the DPIA with the controller, but recital 95 expects you as processor to assist on request, for example with information on how you process and secure the data. If you adhere to an approved code of conduct under Article 40, that is taken into account in the assessment (paragraph 8).

Data Protection Officer

The controller must seek your advice when carrying out a DPIA (paragraph 2). You check whether the assessment contains the elements of paragraph 7 and whether the chosen measures genuinely address the risks to data subjects.

Data Subject

A DPIA is meant to protect your rights and freedoms before a processing operation starts. Where appropriate, the controller asks you or your representatives for your views on the intended processing (paragraph 9).

Compliance checklist

For every new or changed processing operation it is recorded whether it is likely to result in a high risk and therefore requires a DPIA (paragraph 1).Processing operations covered by paragraph 3, such as profiling on which decisions with legal or similarly significant effects are based, large-scale processing of special categories of data (Article 9) or criminal data (Article 10), or large-scale monitoring of public areas, always have a DPIA.The supervisory authority's list of processing operations that require a DPIA has been consulted (paragraph 4).The DPIA is completed before the processing starts (paragraph 1).The data protection officer has given advice on the DPIA (paragraph 2).Every DPIA contains a description of the processing and its purposes, an assessment of necessity and proportionality, a risk assessment and the measures to address those risks (paragraph 7).Where appropriate, the views of data subjects or their representatives have been sought and recorded (paragraph 9).The DPIA is reviewed as soon as the risk of the processing changes (paragraph 11).

Related recitals

(84)

In order to enhance compliance with this Regulation where processing operations are likely to result in a high risk to the rights and freedoms of natural persons, the controller should be responsible ...

(89)

Directive 95/46/EC provided for a general obligation to notify the processing of personal data to the supervisory authorities. While that obligation produces administrative and financial burdens, it d...

(90)

In such cases, a data protection impact assessment should be carried out by the controller prior to the processing in order to assess the particular likelihood and severity of the high risk, taking in...

(91)

This should in particular apply to large-scale processing operations which aim to process a considerable amount of personal data at regional, national or supranational level and which could affect a l...

(92)

There are circumstances under which it may be reasonable and economical for the subject of a data protection impact assessment to be broader than a single project, for example where public authorities...

(93)

In the context of the adoption of the Member State law on which the performance of the tasks of the public authority or public body is based and which regulates the specific processing operation or se...

(94)

Where a data protection impact assessment indicates that the processing would, in the absence of safeguards, security measures and mechanisms to mitigate the risk, result in a high risk to the rights ...

(95)

The processor should assist the controller, where necessary and upon request, in ensuring compliance with the obligations deriving from the carrying out of data protection impact assessments and from ...

Cross-references

Art. 6: Lawfulness of processing Art. 9: Processing of special categories of personal data Art. 10: Processing of personal data relating to criminal convictions and offences Art. 40: Codes of conduct Art. 63: Consistency mechanism Art. 68: European Data Protection Board

Frequently asked questions

← Art. 34: Communication of a personal data breach to the data subject Art. 36: Prior consultation →

Connections

Themes where this returns

The counterpart in the other law

Article 35: Data protection impact assessmentAI-relevant

What does Article 35 govern?

AI Act intersection

Official text

What does this mean for you?

Controller

Processor

Data Protection Officer

Data Subject

Compliance checklist

Related recitals

Cross-references

Frequently asked questions

What connects to Article 35 GDPR

Themes where this returns

The counterpart in the other law

Case law

Guidelines8 of 9

Enforcement and fines

Legislation in motion

Analysis6 of 7