Article 35AI-relevant

Data protection impact assessment

Chapter IVIn force since 25-05-2018

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

Conduct a DPIA before deploying an AI system that processes personal data. Combine where possible with the FRIA (AI Act Art. 27). Involve the DPO in the process.

Processor

Support the controller in the DPIA by providing technical information about the AI system, processing operations and security measures.

Data Protection Officer

Guide the DPIA process and advise on risk mitigation. Assess whether the DPIA sufficiently addresses AI-specific risks (bias, opacity, false positives).

Data Subject

The DPIA is intended to protect your rights. If you suspect an AI system poses a risk to your privacy, you can ask the supervisory authority whether a DPIA has been conducted.

Compliance checklist

DPIA conducted for each AI system that processes personal dataAI-specific risks addressed (bias, opacity, false positives)DPO involved in the DPIA processRisk mitigation measures documented and implementedAssessment whether prior consultation (Art. 36) is neededDPIA regularly reviewed when changes to the AI system occurOverlap with FRIA (AI Act Art. 27) identified and addressed

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 →