GDPR: Your Questions Answered
After four years of preparation and debate the EU General Data Protection Regulation (GDPR) was finally approved by the EU Parliament on 14 April 2016. It was designed to harmonize data privacy laws across Europe, to protect and empower all EU citizens’ data privacy and to reshape the way organizations across the region approach data privacy.
The bar on protection of personal data has been raised and there will be severe penalties for non-compliance. Very few bodies do not store personal data of some description so this is legislation that affects us all. It’s important you are aware of what this means for your organisation.
Hopefully the following list of questions and answers will help you take your first steps to becoming GDPR compliant.
What is GDPR?
The EU General Data Protection Regulation (GDPR) replaces the Data Protection Directive 95/46/EC. It’s designed to harmonize data privacy laws across Europe, to protect and empower all EU citizens’ data privacy and to reshape the way organizations across the region approach data privacy. It will replace the current Data Protection Act.
When will it be enforced?
The GDPR was approved and adopted by the EU Parliament in April 2016. The regulation will take effect after a two-year transition period and, unlike a Directive it does not require any enabling legislation to be passed by government; meaning it will be in force May 2018.
Why is it being introduced?
It is an increasingly data-driven world that is vastly different from the time in which the 1995 directive was established. Although the key principles of data privacy still hold true to the previous directive, many changes have been proposed to the regulatory policies.
Does this just refer to electronic data?
No. It refers to all sources of personal data, such as folders in filing cabinets, CCTV, spreadsheets, ID cards and so on. It impacts any data you hold on staff, visitors, vendors, or those to whom you provide services. You already have a duty of care to ensure that this data is kept safe and secure. With the GDPR, there is increased responsibility, and accountability, to ensure this information – regardless of what form it’s kept in – is managed in the right way.
What data is affected by GDPR?
All personal data. This is not just about marketing. GDPR embraces anything that involves processing an individual’s personal data, from whatever source, for whatever reason.
What is “Privacy by Design”?
Privacy by design calls for the inclusion of data protection from the onset of the designing of systems, rather than as an addition. More specifically - 'The Data Controller shall ... implement appropriate technical and organisational measures ... in an effective way ... in order to meet the requirements of this Regulation and protect the rights of data subjects'. Article 23 calls for Data Controllers to hold and process only the data absolutely necessary for the completion of its duties (data minimisation), as well as limiting the access to personal data to those needing to act out the processing.
What constitutes personal data?
Any information related to a natural person or ‘Data Subject’, that can be used to directly or indirectly identify the person. It can be anything from a name, a photo, an email address, bank details, posts on social networking websites, medical information, or a computer IP address.
Who does the GDPR affect?
The GDPR not only applies to organisations located within the EU but it will also apply to organisations located outside of the EU if they offer goods or services to, or monitor the behaviour of, EU data subjects. It applies to all organisations processing and holding the personal data of Data Subjects residing in the European Union, regardless of the organisation’s location.
What’s the biggest change?
It is the extended jurisdiction of the GDPR. It applies to all establishments processing the personal data of subjects residing in the EU, regardless of their location. Previously, territorial applicability of the directive was ambiguous. GPDR makes its applicability very clear – if data is stored or processed within or outside the EU, the monitoring of that behaviour is subject to GDPR. Non EU organisations will have to appoint a representative in the EU.
Can I leave this to my IT supplier?
A very important question. Currently, there is no formal obligation to have a contract in place with your chosen Data Processor. This will change. Under the GDPR it will be illegal not to have a formal contract or Service Level Agreement (SLA) in place with your chosen supplier. In addition, under the GDPR it will also be a criminal offence to choose an IT recycling partner/Data Processor who doesn’t hold the minimum competencies and accreditations for IT asset disposal (e.g. ADISA, Blancco, ISO 27001). You must be able to demonstrate that you are working with an accredited company when it comes to disposing of your data bearing end of life IT assets.
What if I’m not ready in time?
This is not an option. There are huge fines for non-compliance. Failure to comply under the GDPR could see fines of up to €20 million (or 4% of global turnover – whichever is greater). It is important to note that these rules apply to both Data Controllers and Data Processors -- meaning 'cloud data' will not be exempt from GDPR enforcement.
What’s the difference between a Data Controller and a Data Processor?
A Data Controller is the entity that determines the purposes, conditions and means of the processing of personal data, while the Data Processor is an entity which processes personal data on behalf of the Data Controller. For example, a school may be a Data Controller and their IT contractor may be a Data Processor.
Do I need to seek consent to store personal data?
Yes. The conditions for consent have been strengthened. Consent must be clear and distinguishable from other matters and provided in an intelligible and easily accessible form, using clear and plain language (not lengthy conditions in “legalese”). Consent must be specific i.e. it must be clear for what purpose data is being collected.
If more than one purpose is planned then the individual must be given “granular” choice” (the ability to consent to one purpose but not others). For example, if a local authority is processing data for various different purposes, it will need to get separate consent for each purpose. The regulation creates a presumption that bundling consents will render the consent invalid. It must be as easy to withdraw consent as it is to give it.
What if I discover a data breach?
Under the GDPR, breach notification will become mandatory where a data breach is likely to “result in a risk for the rights and freedoms of individuals”. This must be done within 72 hours of first having become aware of the breach. Data Processors will also be required to notify their customers (the controllers), “without undue delay” after first becoming aware of a data breach.
Do individuals have the right to view the data we hold on them?
Yes. Part of the expanded rights of data subjects outlined by the GDPR is the right for data subjects to obtain from the Data Controller confirmation as to whether or not personal data concerning them is being processed, where and for what purpose. Further, the Data Controller shall provide a copy of the personal data, free of charge, in an electronic format. This change is a dramatic shift to data transparency and empowerment of Data Subjects.
What about Data Subjects under the age of 16?
Parental consent will be required to process the personal data of children under the age of 16 for online services. Member states may legislate for a lower age of consent but this will not be below the age of 13.
What does the “Right to be Forgotten” mean?
Also known as Data Erasure, the right to be forgotten entitles the data subject to have the Data Controller erase his/her personal data, cease further dissemination of the data, and potentially have third parties halt processing of the data. The conditions for erasure, as outlined in article 17, include the data no longer being relevant to original purposes for processing, or a data subjects withdrawing consent. It should also be noted that this right requires Data Controllers to compare the subjects' rights to "the public interest in the availability of the data" when considering such requests.
Does my organisation need to appoint a Data Protection Officer (DPO)?
DPOs must be appointed in the case of: (a) public authorities, (b) organizations that engage in large scale systematic monitoring, or (c) organizations that engage in large scale processing of sensitive personal data (Art. 37). If your organization doesn’t fall into one of these categories, then you do not need to appoint a DPO.
What does “Data Portability” mean?
GDPR introduces the right for a Data Subject to receive the personal data concerning them, which they have previously provided in a 'commonly use and machine readable format' and have the right to transmit that data to another Data Controller.
How does Brexit affect GDPR?
If your organisation employs or provides services to EU citizens then you will need to comply with the GDPR, irrespective of whether or not the UK retains the GDPR post-Brexit. If your activities are limited to the UK, then the position (after the initial exit period) is less clear. The UK Government has indicated it will implement an equivalent or alternative legal mechanisms. The expectation is that any such legislation will largely follow the GDPR, given the support previously provided to the GDPR by the UK Government, together with the fact that the GDPR provides a clear baseline against which UK business can seek continued access to the EU digital market.
What should I do now?
Where can I find out more information?
If you have any specific questions you can send an email to Globocol. Alternatively, you may wish to visit the Information Commissioner’s Office (ICO) web page on GDPR.