So what is the General Data Protection Regulation (GDPR)?
In broad simple terms the GDPR will replace the existing Data Protection Act and will come into force as 25th May 2018.
It takes a more risk based approach to data protection and is designed to give individuals greater protection of their personal data in a world where more data is being processed, technology and the application of artificial intelligence is evolving and information is being shared on a more global basis than ever before.
This is no more so than recent events surrounding Cambridge Analytica and Facebook whereby The data analytics firm used personal information harvested from more than 50 million Facebook profiles without permission to build a system that could target US voters with personalised political advertisements based on their psychological profile, according to Christopher Wylie, a former Cambridge Analytica contractor who helped build the algorithm.
The owner of Facebook Mark Zukerberg had to recently apologies for his company’s involvement, as it became apparent that the social media company had received a number of warnings about its data security policies in recent years and had known about the Cambridge Analytica data breach since 2015, but only suspended the firm and the Cambridge university researcher who harvested user data from Facebook earlier this month. A former Facebook manager has warned that hundreds of millions of users are likely to have had their private information used by private companies in the same way.
So what are the key elements of the GDPR?
The GDPR applies to personal data. This is any information that can directly or indirectly identify a natural person, and can be in any format.
The below are some example of what is classed as Personal Data:
Online behaviour (cookies)
Profiling and analytics data
The Regulation places much stronger controls on the processing of special categories of personal data some of which are listed below:
Trade union membership
The Wider scope
The GDPR applies to all EU organisations – whether commercial business, charity or public authorities, that collect, store or process the personal data of individuals residing in the EU, 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.
The GDPR will still apply to the UK and will remain even post Brexit
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.
We have provided a brief overview of the key areas for you to consider regarding the GDPR and how it may affect you. However for further information please visit the Information Commissioners Officers (ICO) website for more information and guidance.
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
• 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
If you fail to adhere to following the GDPR then there are severe penalties for none compliance of up to EUR20m or 4% of worldwide turnover depending on the severity of the breach