Search for a law firm
February, 15 2019
February, 15 2019
The EU General Data Protection Regulation (GDPR)
The EU’s General Data Protection Regulation (GDPR) will apply from 25 May 2018, when it supersedes all EU member states’ current national data protection laws. Significant and wide-reaching in scope, the Regulation brings a 21st-century approach to data protection. It expands the rights of individuals to control how their personal information is collected and processed, and places a range of obligations on organisations to be more accountable for data protection.
Deadline for compliance: 25 May 2018
Compliance is not a choice and time is running out
GDPR compliance is not just a matter of ticking a few boxes; the Regulation demands that you demonstrate compliance with the data protection principles. This involves taking a risk-based approach to data protection, ensuring appropriate policies and procedures are in place to deal with the principles of transparency and accountability, as well as individuals’ rights and building a workplace culture of data privacy and security.
With the appropriate compliance framework in place, not only will you be able to avoid significant fines and reputational damage, you will also be able to show customers that you are trustworthy and responsible, and derive added value from the data you hold.
The business benefits of the GDPR
- Build customer trust
- Improve brand image and reputation
- Improve data governance
- Improve information security
- Improve competitive advantage
The key elements of the GDPR
The GDPR applies to personal data as any information, in any format, that can directly or indirectly identify a natural person.
The Regulation places much stronger controls on the processing of special categories of personal data. The inclusion of genetic and biometric data is new.
- Email address
- IP address
- Location data
- Online behaviour (cookies)
- Profiling and analytics data
Special categories of personal data
- Political opinions
- Trade union membership
- Sexual orientation
- Health information
- Biometric data
- Genetic data
The GDPR applies to all EU organisations – whether commercial business, charity or public authority – that collect, store or process EU residents’ personal data, even if they’re not EU citizens.
Organisations based outside the EU that offer goods or services to EU residents, monitor their behaviour or process their personal data will be subject to the GDPR.
Service providers (data processors) that process data on behalf of an organisation come under the remit of the GDPR and will have specific compliance obligations. An example might be a company that processes your payroll or a Cloud provider that offers data storage.
Data protection principles
Personal data must be processed according to the six data protection principles:
- Processed lawfully, fairly and transparently.
- Collected only for specific legitimate purposes.
- Adequate, relevant and limited to what is necessary.
- Must be accurate and kept up to date.
- Stored only as long as is necessary.
- Ensure appropriate security, integrity and confidentiality.
Accountability and governance
You must be able to demonstrate compliance with the GDPR:
- The establishment of a governance structure with roles and responsibilities.
- Keeping a detailed record of all data processing operations.
- The documentation of data protection policies and procedures.
- Data protection impact assessments (DPIAs) for high-risk processing operations. Learn more >>
- Implementing appropriate measures to secure personal data.
- Staff training and awareness.
- Where necessary, appoint a data protection officer.
Data protection by design and by default
There is a requirement to build effective data protection practices and safeguards from the very beginning of all processing:
- Data protection must be considered at the design stage of any new process, system or technology.
- A DPIA is an integral part of privacy by design.
- The default collection mode must be to gather only the personal data that is necessary for a specific purpose.
You must identify and document the lawful basis for any processing of personal data. The lawful bases are:
- Direct consent from the individual;
- The necessity to perform a contract;
- Protecting the vital interests of the individual;
- The legal obligations of the organisation;
- Necessity for the public interest; and
- The legitimate interests of the organisation.
There are stricter rules for obtaining consent:
- Consent must be freely given, specific, informed and unambiguous.
- A request for consent must be intelligible and in clear, plain language.
- Silence, pre-ticked boxes and inactivity will no longer suffice as consent.
- Consent can be withdrawn at any time.
- Consent for online services from a child under 13 is only valid with parental authorisation.
- Organisations must be able to evidence consent.
Privacy rights of individuals
Individuals’ rights are enhanced and extended in a number of important areas:
- The right of access to personal data through subject access requests.
- The right to correct inaccurate personal data.
- The right in certain cases to have personal data erased.
- The right to object.
- The right to move personal data from one service provider to another (data portability).
Transparency and privacy notices
Organisations must be clear and transparent about how personal data is going to be processed, by whom and why.
Privacy notices must be provided in a concise, transparent and easily accessible form, using clear and plain language.
Data transfers outside the EU
The transfer of personal data outside the EU is only allowed:
- Where the EU has designated a country as providing an adequate level of data protection;
- Through model contracts or binding corporate rules; or
- By complying with an approved certification mechanism, e.g. EU-US Privacy Shield.
Data security and breach reporting
Personal data needs to be secured against unauthorised processing and against accidental loss, destruction or damage.
- Data breaches must be reported to the data protection authority within 72 hours of discovery.
- Individuals impacted should be told where there exists a high risk to their rights and freedoms, e.g. identity theft, personal safety.
Data protection officer (DPO)
The appointment of a DPO is mandatory for:
- Public authorities;
- Organisations involved in high-risk processing; and
- Organisations processing special categories of data.
A DPO has set tasks:
- Inform and advise the organisation of its obligations.
- Monitor compliance, including awareness raising, staff training and audits.
- Cooperate with data protection authorities and act as a contact point.
GDPR enforcement and penalties
The GDPR has attracted media and business interest because of the increased administrative fines for non-compliance. Not all infringements of the GDPR will lead to those serious fines.
Besides the power to impose fines, the regulatory authority has a range of corrective powers and sanctions to enforce the GDPR. These include issuing warnings and reprimands, imposing a temporary or permanent ban on data processing, ordering the rectification, restriction or erasure of data, and suspending data transfers to third countries
The administrative fines are discretionary rather than mandatory; they must be imposed on a case-by-case basis and must be ‘effective, proportionate and dissuasive’.
There are two tiers of administrative fines that can be levied:
1) Up to €10 million, or 2% annual global turnover – whichever is higher.
2) Up to €20 million, or 4% annual global turnover – whichever is higher.
The fines are based on the specific Articles of the Regulation that the organisation has breached. Infringement of the organisation’s obligations, including data security breaches, will be subject to the lower level, whereas infringements of an individual’s privacy rights will be subject to the higher level.
Liability for damages
The GDPR also gives individuals the right to compensation of any material and/or non-material damages resulting from an infringement of the GDPR. In certain cases, not-for-profit bodies can bring representative action on behalf of individuals. This opens the door for mass claims in case of large-scale infringements.
How IT Governance can help you get GDPR-ready
IT Governance, a leading global provider of IT governance, risk management and compliance solutions, is at the forefront of helping organisations globally address the challenges of GDPR compliance.
For some practical guidelines on how to become compliant, please read our key steps to GDPR compliance. See checklist >>
We offer comprehensive solutions, services and expertise to help you meet your GDPR compliance objectives.
SOURCE: IT GOVERNANCE