The General Data Protection Regulations (GDPR)
The General Data Protection Regulation will apply from 25 May 2018, when it supersedes the UK Data Protection Act 1998. It is significant and wide-reaching in scope, the new law brings a 21st century approach to data protection. It expands on the rights of individuals to control how their personal information is collected and processed, and places a whole new range of new obligations on organisations to be more accountable for data protection.
Compliance is not optional and time running out
GDPR compliance is not just a matter of ticking a few boxes; the Regulations demand that you are able to demonstrate compliance with the data protection principles. This actually involves taking a risk-based approach to data protection, just like Health & Safety, ensuring appropriate policies and procedures are in place to deal with the transparency, accountability and individuals’ rights provisions, as well as building a workplace culture where data privacy and security is not just a passing phrase.
With an appropriate compliance framework in place, not only will you be able to help avoid significant fines and reputational damage, you will also be able to show customers and suppliers that you are trustworthy and responsible.
GDPR applies to personal data. This is any information that can directly or even indirectly identify a person, and can be in any format, electronic or physical.
The Regulation places stringent controls on the processing of special categories of personal data. This also includes genetic and bio metric data.
What is classed as personal data?
Name, Address, Email address, Photo, IP address, Location data, Online behaviour i.e. cookies, Profiling and analytics data.
Special categories of personal data
Race, Religion, Political opinions, Trade union membership, Sexual orientation, Health information, Bio metric data, Genetic data.
A much wider scope
GDPR applies to all European organisations – whether it’s a commercial business, charity or public authority – that collect, store or process personal data of individuals residing in Europe, even if they’re not EU citizens themselves.
Organisations based outside Europe that offer goods or services to EU residents, monitor their behaviour or process their personal data will also be subject to GDPR.
Service providers or data processors that process data on behalf of an organisation come under the remit of the GDPR and will have specific compliance obligations. For example; a company that processes your payroll or a Cloud service 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 & 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.
- 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 from the beginning of any and 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 extended and enhanced 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 have to be clear and transparent as to 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 Europe 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 must 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.