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General Data Protection Regulation (GDPR)

When is the GDPR coming into effect?
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.

In light of a uncertain ‘Brexit’ –  I represent a data controller in the UK and want to know if I should still continue with GDPR planning and preparation?
If you process data about individuals in the context of selling goods or services to citizens in other EU countries then you will need to comply with the GDPR, irrespective as to whether or not you the UK retains the GDPR post-Brexit. If your activities are limited to the UK, then the position (after the initial exit period) is much less clear. The UK Government has indicated it will implement an equivalent or alternative legal mechanisms. Our expectation is that any such legislation will largely follow the GDPR, given the support previously provided to the GDPR by the ICO and UK Government as an effective privacy standard, together with the fact that the GDPR provides a clear baseline against which UK business can seek continued access to the EU digital market. (Ref: http://www.lexology.com/library/detail.aspx?g=07a6d19f-19ae-4648-9f69-44ea289726a0)

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 companies processing and holding the personal data of data subjects residing in the European Union, regardless of the company’s location.

What are the penalties for non-compliance?
Organizations can be fined up to 4% of annual global turnover for breaching GDPR or €20 Million. This is the maximum fine that can be imposed for the most serious infringements e.g.not having sufficient customer consent to process data or violating the core of Privacy by Design concepts. There is a tiered approach to fines e.g. a company can be fined 2% for not having their records in order (article 28), not notifying the supervising authority and data subject about a breach or not conducting impact assessment. It is important to note that these rules apply to both controllers and processors — meaning ‘clouds’ will not be exempt from GDPR enforcement.

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.

What is the difference between a data processor and a data controller?
A controller is the entity that determines the purposes, conditions and means of the processing of personal data, while the processor is an entity which processes personal data on behalf of the controller.

Do data processors need ‘explicit’ or ‘unambiguous’ data subject consent – and what is the difference?
The conditions for consent have been strengthened, as companies will no longer be able to utilise long illegible terms and conditions full of legalese, as the request for consent must be given in an intelligible and easily accessible form, with the purpose for data processing attached to that consent – meaning it must be unambiguous. Consent must be clear and distinguishable from other matters and provided in an intelligible and easily accessible form, using clear and plain language. It must be as easy to withdraw consent as it is to give it.​  Explicit consent is required only for processing sensitive personal data – in this context, nothing short of “opt in” will suffice. However, for non-sensitive data, “unambiguous” consent will suffice.

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 is the difference between a regulation and a directive?
A regulation is a binding legislative act. It must be applied in its entirety across the EU, while a directive is a legislative act that sets out a goal that all EU countries must achieve. However, it is up to the individual countries to decide how. It is important to note that the GDPR is a regulation, in contrast the the previous legislation, which is a directive.

Does my business need to appoint a Data Protection Officer (DPO)?
DPOs mustbe 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.

How does the GDPR affect policy surrounding data breaches?
Proposed regulations surrounding data breaches primarily relate to the notification policies of companies that have been breached. Data breaches which may pose a risk to individuals must be notified to the DPA within 72 hours and to affected individuals without undue delay.

Will the GDPR set up a one-stop-shop for data privacy regulation?
The discussions surrounding the one-stop-shop principle are among the most highly debated and are still unclear as the standing positions are highly varied. The Commission text has a fairly simple and concise ruling in favor of the principle, the Parliament also promotes a lead DPA and adds more involvement from other concerned DPAs, the Council’s view waters down the ability of the lead DPA even further.

The aim of the GDPR is to protect all EU citizens from privacy and data breaches in 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; the key points of the GDPR as well as information on the impacts it will have on business can be found below.

Increased Territorial Scope (extra-territorial applicability)
Arguably the biggest change to the regulatory landscape of data privacy comes with the extended jurisdiction of the GDPR, as it applies to all companies processing the personal data of data subjects residing in the Union, regardless of the company’s location. Previously, territorial applicability of the directive was ambiguous and referred to data process ‘in context of an establishment’. This topic has arisen in a number of high profile court cases. GDPR makes its applicability very clear – it will apply to the processing of personal data by controllers and processors in the EU, regardless of whether the processing takes place in the EU or not. The GDPR will also apply to the processing of personal data of data subjects in the EU by a controller or processor not established in the EU, where the activities relate to: offering goods or services to EU citizens (irrespective of whether payment is required) and the monitoring of behaviour that takes place within the EU. Non-Eu businesses processing the data of EU citizens will also have to appoint a representative in the EU.

Penalties
Under GDPR organizations in breach of GDPR can be fined up to 4% of annual global turnover or €20 Million (whichever is greater). This is the maximum fine that can be imposed for the most serious infringements e.g.not having sufficient customer consent to process data or violating the core of Privacy by Design concepts. There is a tiered approach to fines e.g. a company can be fined 2% for not having their records in order (article 28), not notifying the supervising authority and data subject about a breach or not conducting impact assessment. It is important to note that these rules apply to both controllers and processors — meaning ‘clouds’ will not be exempt from GDPR enforcement.

Consent
The conditions for consent have been strengthened, and companies will no longer be able to use long illegible terms and conditions full of legalese, as the request for consent must be given in an intelligible and easily accessible form, with the purpose for data processing attached to that consent. Consent must be clear and distinguishable from other matters and provided in an intelligible and easily accessible form, using clear and plain language. It must be as easy to withdraw consent as it is to give it.​

Data Subject Rights

Breach Notification

Under the GDPR, breach notification will become mandatory in all member states 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.

Right to Access
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 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.

Right to be Forgotten
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 controllers to compare the subjects’ rights to “the public interest in the availability of the data” when considering such requests.

Data Portability

GDPR introduces data portability – 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 controller.

Privacy by Design

Privacy by design as a concept has existed for years now, but it is only just becoming part of a legal requirement with the GDPR. At its core, privacy by design calls for the inclusion of data protection from the onset of the designing of systems, rather than an addition. More specifically – ‘The 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 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.

Data Protection Officers

Currently, controllers are required to notify their data processing activities with local DPAs, which, for multinationals, can be a bureaucratic nightmare with most Member States having different notification requirements. Under GDPR it will not be necessary to submit notifications / registrations to each local DPA of data processing activities, nor will it be a requirement to notify / obtain approval for transfers based on the Model Contract Clauses (MCCs). Instead, there will be internal record keeping requirements, as further explained below, and DPO appointment will be mandatory only for those controllers and processors whose core activities consist of processing operations which require regular and systematic monitoring of data subjects on a large scale or of special categories of data or data relating to criminal convictions and offences. Importantly, the DPO:

  • Must be appointed on the basis of professional qualities and, in particular, expert knowledge on data protection law and practices
  • May be a staff member or an external service provider
  • Contact details must be provided to the relevant DPA
  • Must be provided with appropriate resources to carry out their tasks and maintain their expert knowledge
  • Must report directly to the highest level of management
  • Must not carry out any other tasks that could results in a conflict of interest.​

An overview of controversial topics likely debated during the Trilogue negotiations, including the stance of each EU body from their respective adopted drafts of the GDPR.

Many of the key points of the regulation are clear and documented similarly across the three current drafts, but many details still needed to be hammered out and some points come with enough variability to warrant their own comparison between drafts. Below is an analysis of the topics which are likely to have been the subject of much debate during the Trilogue negotiation process.

Data Portability
The right to data portability has its own article (18) in the commission and council proposal documents, but is part of the right to access article (15) in the parliament text. The relevant quotes from each draft are as follows:

Commission text:
Where the data subject has provided the personal data and the processing is based on consent or on a contract, the data subject shall have the right to transmit those personal data and any other information provided by the data subject and retained by an automated processing system, into another one, in an electronic format which is commonly used, without hindrance from the controller from whom the personal data are withdrawn.

Parliament text:
Where the data subject has provided the personal data where the personal data are processed by electronic means, the data subject shall have the right to obtain from the controller a copy of the provided personal data in an electronic and interoperable format which is commonly used and allows for further use by the data subject without hindrance from the controller from whom the personal data are withdrawn. Where technically feasible and available, the data shall be transferred directly from controller to controller at the request of the data subject.

Council text:
The right [to data portability] shall not apply if disclosing personal data would infringe intellectual property rights in relation to the processing of those personal data. The data subject shall have the right to receive the personal data concerning him or her, which he or she has provided to a controller, in a structured and commonly used and machine-readable format.

It is important to note that all texts only apply portability to data provided by the data subject, and the Commission and Council texts only apply to data which is processed based on consent or contract, leaving out personal data processed by other lawful means. The most important differences come in the Parliament’s caveat of only requiring direct transfer “where technically feasible and available” as well as the Council’s addition of the need for data to be machine readable and also excluding data that would infringe intellectual property rights if disclosed. The predominant concerns arising from the supporters of data portability see the Parliament’s text as a potential drag on overall effectiveness if corporations are simply unwilling to improve their technology in order to comply. On the other hand, critics of the idea worry that forcing data portability with such a broad scope will lead to disproportionate cost and effort in industries with no consumer “lock-in.”

One-Stop-Shop
As one of the key drivers behind creating a new regulation was the harmonization of data protection laws throughout Europe, the one-stop-shop principle seems like a sensible addition. However, the principle is not as simple in practice as it can appear on paper, and the original Commission proposal has been modified heavily by its subsequent GDPR adoptions.

The proposal from the Commission in article 15 is by far the simplest and most general approach: “Where the processing of personal data takes place in the context of the activities of an establishment of a controller or a processor in the Union, and the controller or processor is established in more than one Member State, the supervisory authority of the main establishment of the controller or processor shall be competent for the supervision of the processing activities of the controller or the processor in all Member States.”

The Parliament took issue over the potential infringement of data subject rights when they are not able to easily lodge a complaint with a competent lead DPA if, for instance, contact is made difficult by language or financial means. In article 54a of its adopted text, the Parliament still relies on a lead DPA for the doling out of legal remedies, but it requires the cooperation of all concerned DPAs. The amount of concerned DPAs will also be greatly increased as a provision is also added for data subjects to lodge complaints with their local DPA in order for it then to work with the lead DPA on behalf of the data subject. Finally, the role of the Data Protection Board is increased in its ability to decide in the situation of an unclear lead DPA and its ultimate ruling in the event of the invoking of the consistency mechanism.

The Council has arguably the most “watered-down” version of a one-stop-shop in its adopted general approach. It provides each DPA with the competence to enforce the GDPR in its own state, and requires the lead DPA to consult with and share all information with every concerned DPA. It also allows any concerned DPA to refer a case to the Data Protection Board should it feel that the lead DPA has not taken its opinion into account. Overall, this increases the amount of red tape involved to a point beyond the initial intention of the one-stop-shop principle and allows for the potential of ‘capricious referrals’ that undermine the authority of the lead DPA and potentially put a strain on the Data Protection Board, which is set up under the GDPR but not allocated any specific funding or infrastructure.

The pervasive debate throughout the one-stop-shop principle is the balancing act between reducing red tape by harmonizing data protection laws across Europe and ensuring the rights of data subjects are secured by their availability of legal redress with the appropriate DPA.

Data Protection Officers
The designation of a Data Protection Officer (DPO), covered in article 35, has somewhat similar views coming from both the Commission and Parliament. They agree that a DPO is mandatory wherever the data processing is carried out by a public authority or a company (controller or processor) whose core activities consist of processing operations which require regular and systematic monitoring of data subjects. They also agree that companies passing certain thresholds should be mandated to appoint a DPO, yet they differ on the exact metric. Finally, Parliament adds that a DPO should be mandatory for all enterprises that process ‘Special categories’ of data, including information such as health data or religious and political beliefs. The Commission text requires any enterprise over 250 employees, while the Parliament text calls for those processing the personal data of over 5000 data subjects in any 12 month period. The Council does not mandate the appointment of a DPO unless it is required by EU or member state law. Its members themselves had varying views during the debate prior to the release of the general approach, so it will be interesting to see how vigorously the Council fights for this relaxation of DPO appointments against both other authorities who seem to hold similar positions.

Sources

  1. http://blogs.lse.ac.uk/mediapolicyproject/2014/04/11/data-portability-series-at-the-crossroads-of-protection-and-competition-policy/
  2. https://secure.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/Consultation/Opinions/2015/15-07-27_GDPR_Recommendations_Annex_EN.pdf
  3. http://www.olswang.com/eu-data-protection-reform/data-portability/
  4. http://united-kingdom.taylorwessing.com/globaldatahub/article-one-stop-shop.html
  5. http://www.dataprotectionreport.com/2015/04/dispute-resolution-mechanisms-for-sas-and-individuals-are-key-part-of-proposed-eu-regulation/
  6. http://privacylawblog.fieldfisher.com/2015/eu-council-of-ministers-adopts-general-data-protection-regulation
  7. http://www.dataprotectionreport.com/2015/04/dispute-resolution-mechanisms-for-sas-and-individuals-are-key-part-of-proposed-eu-regulation/
  8. http://www.out-law.com/en/articles/2015/january/data-protection-officers–will-eu-businesses-face-an-obligation-to-appoint-one/