The aim of the GDPR is to protect all EU citizens from privacy and data breaches in an increasingly data driven world and replace the Data Protection Directive 1995 that was designed to harmonize data privacy law across 28 EU member states. In the event if the UK leave the EU the GDRP will apply for all EU data subjects.
After four years of developing and debates on GDPR was finally approved by the EU Parliament on 14 April 2016. The enforcement will come into effect in 25 May 2018 where companies may face high fines in non-compliance. GDPR can fine up to 4% of annual global turnover or €20 Million for violating the core of Privacy by Design concepts.
The rules will separate roles and responsibilities of the data controllers and processors, obligating controllers to deal only with those processors that provide “guarantees to implement appropriate technical and organizational measures” to comply with regulations, requirements and protect data subjects’ rights. Controllers and processors are required to “implement appropriate technical and organizational measures” taking into account “the state of the art and the costs of implementation” and “the nature, scope, context, and purposes of the processing as well as the risk of varying likelihood and severity for the rights and freedoms of individuals.” Controllers and processors that adhere to either an approved code of conduct or an approved certification may use these tools to demonstrate compliance.
Fairness and Transparency
Organizations must always process personal data lawfully, fairly, and in a transparent manner.
Purpose Limitation
Organizations can collect personal data only for specified, explicit, and legitimate purposes. They cannot further process personal data in a manner that’s incompatible with those purposes.
Data Minimization
Organizations can collect only personal data that’s adequate, relevant, and limited to what’s necessary for the intended purpose.
Accuracy
Personal data must be accurate and, where necessary, kept up to date.
Data Deletion
Personal data must be kept only for as long as it’s needed to fulfill the original purpose of collection.
Breach Notification
According to 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.
Data Protection Officers (DPO)
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. 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
- 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
Regardless of where an organization is established, the GDPR applies to EU personal data.
Is your organization ready to comply with the forthcoming EU General Data Protection Regulation (GDPR)?
