In today’s digital economy, data security is no longer just an IT management issue, but a strategic core function with direct consequences for legal liability, business continuity, and social legitimacy. Organizations operate within a complex web of national and international regulations, with the General Data Protection Regulation (GDPR) playing a central role. Since its implementation on May 25, 2018, the GDPR has had a profound impact on the way organizations handle personal data. The regulation mandates transparency, accountability, and compliance at all levels of data processing, and introduces strict penalties for violations. At the same time, the GDPR strengthens the rights of data subjects in unprecedented ways, with claims for access, rectification, restriction, portability, and erasure of personal data. This development has led to fundamental shifts in governance, technical infrastructure, and legal decision-making.
The legal challenges surrounding privacy and data protection are increasingly intertwined with risks related to financial mismanagement, corruption, international sanctions, and cross-border liability. Companies that become involved in allegations of fraud, money laundering, or bribery find themselves in a vulnerable position when their data processing is also not in order. The role of legal advisors is not only reactive—aiming to prevent fines or enforcement by regulators—but also proactive and strategic. Establishing a robust privacy and cybersecurity policy, including handling inquiries and investigations by the Dutch Data Protection Authority (AP), requires specialized knowledge of regulations, forensic analysis, and organizational agility. Properly interpreting and implementing legal obligations into operational processes is essential to avoid reputational damage, fines, and legal proceedings.
(a) Contractual Negotiations on Data Processing
Drafting, reviewing, and negotiating contracts related to data processing is a fundamental legal tool for protecting both the data controller and the processor. Data processing agreements (DPAs) clearly define responsibilities and liabilities in compliance with Article 28 of the GDPR. Every provision regarding technical and organizational security measures, incident notification, sub-processors, and international data transfers must align with the latest interpretations by European regulators and national courts. In international cooperation, coordination with Standard Contractual Clauses (SCCs) or Binding Corporate Rules (BCRs) is necessary, along with mechanisms for oversight and legal protection.
In service agreements where personal data is processed incidentally, it is essential to determine whether the service provider acts as a processor or as an independent data controller. This classification determines the legal relationship and the extent to which GDPR obligations apply to both parties. Legal advisors should carefully analyze these classifications based on operational practices, data structures, and the impact on the processing purpose, as incorrect classifications can lead to unlawful processing and fines.
Joint controller agreements require a detailed description of joint purposes and means, as well as transparent agreements on data subject rights, complaint handling, and liability distribution. Legal structures must be set forth in written arrangements and actively communicated to data subjects through clear privacy notices. These agreements are critically reviewed by the AP in the case of complaints or investigations, where ambiguity or lack of written agreements can lead to sanctions.
International data transfer agreements require extra attention due to the Schrems II ruling, in which the Court of Justice of the EU invalidated the Privacy Shield. Since then, there has been increased pressure on companies to implement alternative safeguards, such as amended SCCs, Transfer Impact Assessments (TIAs), and encryption protocols. Adequately and legally documenting such arrangements is crucial to make international cooperation legally viable.
(b) Advice on Daily Processing Activities
Legal advice on daily processing activities requires in-depth knowledge of operational processes within organizations. Legal assessment of data transfers to third countries, for example, to service providers outside the European Economic Area (EEA), must align with specific data flows, storage locations, and access capabilities. Contractual and technical measures should be secured in collaboration with IT departments, with the legal function ensuring compliance checks based on Articles 44-49 of the GDPR.
Marketing campaigns, contests, and direct marketing activities fall under specific provisions of the GDPR and the Telecommunications Act. Legal advice focuses on legal grounds (consent or legitimate interest), information obligations, and opt-out mechanisms. Every element of the campaign, from tracking pixels to email text, must be legally validated for transparency, purpose limitation, and proportionality.
Data retention policies and retention periods are a critical pillar of compliance. In many sectors, there is no uniform regulation on retention periods, requiring organizations to justify appropriate periods based on necessity and risk. Legal advice is needed when establishing retention periods in policy documents and contracts, as well as when setting up automatic deletion or pseudonymization in IT systems. Insufficient justification can lead to violations in audits by the AP or in civil proceedings.
Complaints from data subjects, such as those concerning access, correction, or erasure of data, must be legally assessed and addressed within the statutory period of one month. Legal evaluation is necessary to determine whether a request can be granted, partially granted, or justifiably refused. At the same time, the organization must be prepared for appeal procedures before the AP or even civil proceedings in which the privacy policy is challenged.
(c) Setting Up a Record of Processing Activities
Establishing and managing a record of processing activities in compliance with Article 30 of the GDPR is a fundamental part of accountability. Legal support is required in determining the processing purposes, categories of data subjects, data, and recipients. Each processing activity must be legally assessed for legal grounds, data minimization, and retention periods, while sector-specific obligations and special categories of data require additional attention.
The record should not merely serve as a paper requirement but as a living document that is periodically updated based on organizational and technological changes. Legal guidance is necessary in structuring the register, assigning responsibility for each processing activity, and establishing procedures for updates. A detailed record prevents errors during AP investigations and provides a solid foundation for accountability in audits.
In multinational companies, the register is often spread across multiple entities and jurisdictions. In this case, legal coordination is required to ensure consistency and alignment with local laws. Legal professionals must act as intermediaries between functional departments, IT teams, and international legal teams to create a consolidated overview that reflects the various risks.
Registers are increasingly integrated into Governance, Risk & Compliance (GRC) platforms, where legal validation plays a crucial role. Any update to the processing register must first be legally assessed for compatibility with existing privacy policies, sector-specific legislation, and contractual obligations towards data subjects or regulators.
(d) Drafting Policy Documents and Statements
Drafting policies surrounding data protection is more than a legal formality; it reflects the level of compliance and risk management within an organization. Privacy policies, data breach protocols, and retention policies must be aligned with internal practices, technical infrastructure, and applicable legislation. Legal departments must lead multidisciplinary teams and ensure that all provisions are legally sound, comprehensible, and practically executable.
An effective data breach protocol includes legal steps for internal assessment, reporting to the AP, and communication to data subjects. The legal evaluation of the incident determines whether notification is necessary, within which timeframe, and with what content. Every decision must be substantiated with risk analyses, log files, and statements from technical teams, ensuring accountability towards regulators.
Retention policies form an integral part of compliance and require a legal translation of retention periods into concrete actions within systems. Legal teams draft policies linking retention periods to processing purposes and risks, including exceptions for archiving, statistics, or legal proceedings. Improper implementation of retention policies can lead to unlawful processing and fines.
Privacy statements are the primary communication tool with data subjects. Legal departments ensure clear, complete, and accessible wording, incorporating all obligations under Articles 13 and 14 of the GDPR. Furthermore, statements must be reviewed periodically in light of changes in technology, policy, or legislation. Legal validation is essential to prevent complaints or sanctions.
(e) Implementation of a Cookie Policy
The implementation of a legally sound and technically functioning cookie policy requires in-depth knowledge of both the General Data Protection Regulation (GDPR) and the Telecommunications Act (Tw). Cookies and similar technologies, such as pixels and scripts, are frequently used for functional, analytical, and marketing purposes, but they also involve the processing of personal data when they track user behavior or combine device information. Legal advice is crucial to determine which cookies can be placed without consent and which are subject to the explicit, prior consent of the user.
When drafting a cookie policy, it is essential to clearly specify which cookies are used, who places them (first-party cookies versus third-party cookies), for what purposes, and what retention periods apply. Each individual cookie must be legally qualified, with a distinction made between essential cookies, preference cookies, performance cookies, and tracking cookies. Additionally, the legal grounds and balancing of interests must be legally substantiated, particularly when legitimate interest is used as the basis.
Consent for the use of non-essential cookies must comply with the requirements of the ePrivacy Directive and the GDPR: it must be freely given, specific, informed, and unambiguous. This sets high demands on the operation of cookie banners and consent management platforms (CMPs). The legal assessment should focus on the functionality of the interface, the textual content, and how users can manage or change their preferences. The Dutch Data Protection Authority (AP) evaluates these banners strictly, basing sanctions on unclear or misleading information.
The technical configuration of cookies must always align with the legally established policy. Simply providing a cookie statement is not sufficient if cookies are placed before consent is obtained or if users do not have a genuine choice. Legal validation of functionality, for example, through audit scripts and test scenarios, is necessary to ensure compliance. The legal analysis of data flows to third parties plays a key role, especially when these occur outside the European Economic Area.
When there are changes in website functionality, advertising partners, or legal requirements, the cookie policy must be updated. Legal professionals should ensure periodic review and implement necessary adjustments in the banner and statement. Even in the case of mergers, acquisitions, or restructurings, recalibration of the cookie policy is necessary, as the sharing of data through cookies can affect contractual obligations and users’ privacy rights.
(f) Advising on the Implementation of Employee Monitoring Tools
The legal implications of implementing monitoring tools for employees are significant, given the asymmetrical power dynamics in the employer-employee relationship and the sensitivity of the data processed. Employers are increasingly using technologies such as email monitoring, location tracking, CCTV, keylogging, and productivity tools. Any form of monitoring affects employees’ privacy and, therefore, requires an extremely careful legal approach, particularly regarding proportionality and subsidiarity.
When legally assessing monitoring tools, it is evaluated whether the intended purpose is legitimate, whether less intrusive means are available, and whether the intrusion on the employee’s privacy is justified. As a rule, monitoring is only permitted if there is a concrete, demonstrable interest of the employer that cannot be achieved otherwise. Legal advice is crucial in this context, particularly considering case law from the European Court of Human Rights (e.g., Barbulescu case).
The introduction of monitoring tools requires a thorough Data Protection Impact Assessment (DPIA) when there is large-scale or systematic monitoring. Legal advice is necessary to determine whether the requirements of Article 35 GDPR have been met and how the risks to employees’ rights and freedoms can be minimized. Internal procedures for information provision, objection handling, and complaint resolution also play an important role and must be legally documented.
Furthermore, the Works Council (OR) or employee representatives must be involved in the introduction of monitoring measures, in accordance with Article 27 of the Works Councils Act (WOR). Legal support is needed to determine whether consent is required, how the consultation process should be organized, and what documentation must be provided to the Works Council. Without consent, monitoring measures may be invalidated, with far-reaching consequences for their legal validity and evidentiary power.
Finally, the use of monitoring tools must be documented in internal policy documents, such as codes of conduct, ICT regulations, and privacy statements for staff. These documents must be legally sound, written in clear language, and aligned with actual practice and technical configurations. Legal validation prevents the unlawful collection of data from being used in disciplinary or dismissal procedures.
(g) Legal Advice on Connected Services and Graphical Interfaces
The rise of connected services, including Internet of Things (IoT) applications, apps, and platform services, places specific demands on the protection of personal data. These services continuously process data on behavior, location, usage frequency, and preferences, often without the user fully realizing the extent and nature of the processing. Legal advice is crucial to shape the interface in a way that complies with the principles of privacy by design and privacy by default, as required under Article 25 of the GDPR.
Graphical interfaces form the primary communication channels between service and user. Legal scrutiny of these interfaces must ensure that all information obligations under the GDPR are met. This involves not only the content of statements but also their placement, layout, timing, and comprehensibility. Interfaces that are misleading or obscure (dark patterns) can lead to invalid consent and fines from regulators.
When developing user interfaces (UIs), consideration must be given to the rights of the data subjects. Every choice the user makes about consent, profiling, or communication must be explicit, informed, and reversible. Legal assessment of the flow of interface elements is necessary to ensure, for example, that refusing cookies or unsubscribing from marketing communication is as easy as consenting.
The architecture of connected services requires legal assessment of data flows, storage locations, interfaces with external APIs, and the division of roles between data controllers and processors. Every external link or embedded tool, such as social media plugins or analytics modules, must be legally assessed for necessity, proportionality, and security measures. Insufficient control over such integrations can lead to unintended data breaches and liability.
Legal advice is also required when using machine learning and automated decision-making in connected services. When user profiles are built and decisions are made automatically, the obligations under Article 22 of the GDPR apply. Users must then be provided with legally valid information about the existence of such decision-making, including the logic, significance, and expected consequences of it.
(h) Conducting Data Protection Impact Assessments and Privacy Audits
A Data Protection Impact Assessment (DPIA) is mandatory for processing activities that are likely to result in a high risk to the rights and freedoms of natural persons. Conducting a DPIA requires not only technical knowledge but also a legal framework to identify, assess, and mitigate risks. Legal advice is crucial in determining whether a DPIA is necessary and how it should be structured in accordance with Article 35 of the GDPR.
A well-executed DPIA consists of a description of the processing, an assessment of the necessity and proportionality, a risk analysis, and a description of measures to mitigate those risks. Legal guidance is required to identify applicable laws and regulations, determine the legal basis for the processing, and map potential conflicts with the rights of data subjects.
Privacy audits, on the other hand, are broader in scope and focus on the entire data processing policy of an organization. During an audit, it is assessed whether the organization complies with the principles of lawfulness, purpose limitation, transparency, accuracy, integrity, security, and accountability. Legal professionals analyze contracts, policy documents, processing records, and technical configurations to detect compliance gaps and make recommendations.
For both DPIAs and audits, collaboration between legal, IT, and compliance departments is essential. The legal function is responsible for reviewing legal bases, data subject rights, international transfers, and reporting obligations. Additionally, it is assessed whether incident response procedures are legally sound and whether management is sufficiently aware of its responsibilities.
The results of DPIAs and audits are used to implement policy changes, optimize technical measures, and prepare accountability documentation for regulators. Legal advice is indispensable to ensure that recommendations are translated into binding instructions, legal documents, and contractual amendments.
(i) Dealing with the Data Protection Authority (DPA)
Dealing with the Data Protection Authority (DPA) requires a strategic-legal approach that takes into account administrative enforcement powers, reputational risks, and the international regulatory climate. Once the DPA initiates an information request, investigation, or hearing, a formal administrative process is triggered, and every step must be legally substantiated. The legal defense of an organization requires an understanding of both substantive data protection law and administrative procedural law.
When an information request or document inspection is made, it must be carefully determined which obligations apply, which deadlines are in place, and to what extent confidential or competitively sensitive information can be withheld. Legal argumentation about scope, necessity, and confidentiality is necessary to limit unnecessary exposure and legal risks. In many cases, it is necessary to provide well-substantiated defenses against the DPA’s interpretation.
During hearings, legal representation is essential to present the organization’s position clearly and legally correctly. The structure of the defense, the underlying legal and factual grounds, and the manner of presentation directly influence the assessment of the case. At the same time, clear communication with the regulator is required to prevent legal escalation leading to administrative fines or sanctions.
Organizations that are accused of violating the GDPR in combination with financial mismanagement, money laundering, corruption, or violations of sanction rules face an increased risk of comprehensive investigations. In such cases, coordination is required between the legal approach toward the DPA and potential criminal investigations. Legal alignment is necessary to prevent statements or documents in one case from working against the organization in another legal process.
Finally, legal expertise is needed to anticipate future enforcement actions and reputational damage. This means that legal teams must continuously monitor what the DPA publishes regarding penalty reports, policy guidelines, and rulings, and make timely risk assessments. Preventive legal advice and strategic scenarios are necessary to prevent escalation and ensure legal robustness.
