From 25 May 2018, the EU General Data Protection Regulation (GDPR) will replace the Data Protection Directive 95/46/EC. After this date, organisations in non-compliance could be heavily fined, so what actions should you take to avoid this?
From 28 May 2018, the EU General Data Protection Regulation (GDPR) will replace the Data Protection Directive 95/46/EC. GDPR was designed to harmonise 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.
What is GDPR?
GDPR is a legislative document by the EU to bring data protection legislation into line with the numerous ways that data is now used. At the time of writing, the UK abides by the Data Protection Act 1998. This will be superseded by the new GDPR legislation and will result in higher penalties for breaches and non-compliance.
What are the aim and benefits of GDPR?
Put simply, GDPR was designed to give the public more say over which organisations have access to their data and what they do with it. GDPR will apply to personal data ad.
GDPR was aimed at protecting 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 (95/46EC), 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.
What are the key changes?
The key changes are provided under the GDPR website, and it is advised to visit this portal for the most up-to-date information to ensure you and/or your organisation is compliant. However, the key changes are described as:
- Increased Territorial Scope (extra-territorial applicability): GDPR applies to all companies processing the personal data of data subjects residing in the Union, regardless of the company's location.
- Penalties: organisations 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
- Consent: 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 (EUGDPR.ORG Portal, 2018).
Roles: 'Controller' or 'Processor'
In considering who GDPR applies to, the terms 'controllers' and 'processors' are used. To provide a simple definition:
- Controllers determine the purposes and means of processing personal data.
- Processors are responsible for processing personal data on behalf of a controller.
As a processor, GDPR places specific legal obligations to maintain records of personal data and processing activities. The processor will have legal liability and be responsible for a breach.
For Controllers, GDPR places further obligations on you to ensure your contracts with processors comply with the GDPR.
Data Subject rights
Under GDPR organisations must consider how they store personal data and organise themselves appropriately. For data subject rights, this includes
- Breach Notification to become mandatory in all EU 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 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.
- Right to be forgotten/Data erasure 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.
- Data portability is 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 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'.
- Under GDPR, Data Protection Officers (DPO) will not be required to submit notifications / registrations to each local DPA of data processing activities. Instead, there will be internal record keeping requirements. 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.
Will GDPR matter for organisations in the UK after Brexit?
For companies in the UK 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 the UK retains the GDPR post-Brexit.
What should you do next?
GDPR will come into effect from 25 May 2018. All organisations must begin to plan for the change in legislation and consider how their existing practice could result in a data breach, or result in them being judged 'non-compliant'.
Find out more
For further information, resources and FAQs are available via the EU GDPR.ORG portal.