The General Data Protection Regulation (GDPR) is due to be implemented in the EU in May 2018. In order to ensure compliance with the requirements of the GDPR, all UK organisations should ensure that they are aware of and prepared for the changes that the new law will bring.
Martin Hodgson, a business writer on data management, looks at the differences between the GDPR and current data protection law.
What is the GDPR?
The General Data Protection Regulation (GDPR) was approved by the European Parliament in April 2016. It was designed to harmonise and update data privacy laws across the EU, to protect the data privacy of EU citizens, and to reshape the way organisations across the EU approach data privacy.
The GDPR replaces the Data Protection Directive 95/46/EC which was enacted in the UK through the Data Protection Act 1998 (DPA 1998). It comes into force in all EU Member States on 25 May 2018. After this date non-compliant organisations may face heavy fines. Organisations will be obliged to demonstrate that they comply with the new law.
The GDPR will be enacted in the UK as the Data Protection Act 2017. The Act will legislate in areas where the GDPR allows flexibility at national level. It will also introduce legislation on processing for law enforcement purposes.
The DPA 1998 will be completely repealed.
Why was the GDPR developed?
The GDPR was developed to reflect the considerable changes in the way that organisations and individuals use data since the original 1995 directive and 1998 DPA. The world is now much more “data-driven” and protection for privacy has never been more important, especially when faced with growing “cyber-security” and identity theft threats.
That said, many of the main concepts and principles behind the GDPR are reassuringly familiar to those in the current DPA. For organisations that are complying properly with the current law, this means that much of their general approach to compliance is likely to remain valid under the GDPR.
For instance, as with the DPA, the GDPR applies to “data controllers” and “data processors” — the former controlling how and why personal data is processed, and the later doing the processing on behalf of a controller.
However, while much of the GDPR is similar to the DPA, there are important changes.
What are the main differences between the GDPR and current data protection laws?
There are a number of provisions within the GDPR which represent substantial changes from the current DPA. The main differences are listed below.
The GDPR introduces a principle of “accountability” whereby organisations must be able to demonstrate compliance.
The key obligations to support this include:
the recording of all data processing activities with their lawful justification and data retention periods
routinely conducting and reviewing data protection impact assessments where processing is likely to pose a high risk to individuals’ rights and freedoms
assessing the need for data protection impact assessment at an early stage, and incorporating data protection measures by default in the design and operation of information systems and processes.
Increased territorial scope
In a key change to existing rules, the new GDPR will apply to all companies and organisations processing the personal data of data subjects residing in the EU, regardless of the company’s location. Thus, the regulations not only apply to organisations located within the EU but also to those located outside of the EU if they offer goods or services to, or monitor the behaviour of, EU data subjects.
Personal data redefined
As with the DPA, any information related to a person, or data subject, that can be used to directly or indirectly identify the person is regarded under the GDPR as personal data. However, the definition is broader than that in the DPA and can include names, photographs, email addresses, bank details, posts on social networking websites, medical information, or computer IP addresses. Even “pseudonymised” data may fall within the scope depending on how difficult it is to attribute to a particular individual.
The Information Commissioner’s Office (ICO) states that for most small businesses who keep staff records, customer lists, or contact details, etc the wider definition should make little practical difference. It advises organisations to assume that if they hold information that falls within the scope of the current DPA, it will also fall within the scope of the GDPR.
The GDPR refers to sensitive personal data as “special categories of personal data” — this can include genetic and biometric data where it is processed to uniquely identify an individual.
Expanded rights of access
According to the GDPR, people will have expanded rights to obtain from a data controller confirmation as to whether or not personal data concerning them is being processed, where and for what purpose. Data controllers must provide a copy of the personal data, free of charge, in an electronic format.
Strengthened consent conditions
Under the GDPR any request for consent must be made in an easily accessible form, with the purpose for data processing attached. Consent must be clear and distinguishable from other matters, separate from other terms and conditions, and must use plain language. It must be as easy to withdraw consent as it is to give it.
It will be against the rules to use long illegible terms and conditions full of legal terms. Consent cannot be inferred from silence, pre-ticked boxes or inactivity.
For non-sensitive data, “unambiguous” consent as described above will suffice. However, for processing sensitive personal data explicit consent will be required which will usually involve an “opt-in” request.
Parental consent will be required to process the personal data of children under the age of 16 for online services. However, Member States may legislate for a lower age of consent if they wish.
New “right to be forgotten”
Article 17 involves the “right to be forgotten” — also known as data erasure. It entitles a data subject to request that a data controller should erase their personal data, cease further dissemination of the data, and potentially have third parties halt processing of the data.
Conditions for erasure include data subjects withdrawing consent or data no longer being relevant to the original purposes for processing.
Data controllers have a duty to compare the subject’s right to be forgotten with “the public interest in the availability of the data” when considering such requests.
GDPR introduces data portability — the right for a data subject to receive the personal data concerning them, which they have previously provided to another controller.
Privacy by design
Privacy by design is another key concept in the GDPR. It calls for data protection to be a core element in the design of new systems, applying right from the start rather than being a later addition. Controllers are required under GDPR to implement appropriate technical and organisational measures in an “effective way” and to have adequate systems, contractual provisions and training in place.
The concept of data minimisation in Article 23 calls for controllers to hold and process only the data absolutely necessary for the completion of their duties as well as limiting access to personal data to those needing to act out the processing.
Data protection officers
Under the GDPR some organisations are legally required to appoint a Data Protection Officer (DPO). The role of the DPO is to inform and advise their organisations about all issues in relation to GDPR compliance.
The appointment of a DPO will be mandatory for all public authorities. It will also be mandatory for organisations that carry out large-scale systematic monitoring of individuals or processing of special categories of data or data relating to criminal convictions and offences.
Notification of breaches
The GDPR requires local data protection authorities to be notified of a data breach within 72 hours of discovery. Data processors must also notify their controllers “without undue delay” after first becoming aware of a data breach.
A new tiered approach to fines will apply. Under the GDPR organisations can be fined a maximum of 4% of their annual global turnover or €20 million (whichever is greater) for serious breaches of the rules, such as not having customer consent to process data or violating the core Privacy by Design concept.
The rules apply to both controllers and processors of data which means that “cloud” service will not be exempt from GDPR enforcement.
Preparation by businesses
All UK organisations should ensure that they are aware of the changes that the GDPR will bring and prepare for them. Failure to comply with the new law can invite action from the information commissioner and a possible fine.
Businesses should plan their approach in good time before May. They should ensure that key people in the business know about the changes. Impact assessments should be carried out to determine what will need to change and the resource implications.
Organisations should document what personal data they hold, where it came from and who it is shared with. If necessary, an information audit should be completed.
Current privacy notices should be reviewed and a plan put in place for making any necessary changes in time for GDPR implementation. Procedures should be reviewed to ensure they cover all the new rights individuals have under the GDPR, for example, data portability and providing data electronically.
Businesses must also review their legal basis for processing personal data and their processes for consent. In addition, businesses must ensure they have the right procedures in place to detect, report and investigate a personal data breach.
All processes and policies should be documented fully.
The GDPR will apply in the UK on 25 May 2018. The Government has confirmed that the UK’s decision to leave the EU will not affect the commencement of the GDPR.
No matter what happens in the Brexit negotiations, organisations that process data about individuals in the context of selling goods or services to citizens in other EU countries will need to comply with the GDPR. UK businesses that want to seek continued access to the EU digital market will need to take GDPR under consideration.
The ICO states that, with so many businesses and services operating across borders, international consistency around data protection laws and rights is crucial both to businesses and organisations, and to individuals.
A range of information is available to help organisations get ready for the GDPR.
The ICO website is a good source of further information. The ICO has warned UK businesses to get prepared and has produced a 12 Steps to Take Now document to help them ensure they are ready. Also available a two online checklists, one for data controllers and one for data processors.
Official EU documents and news can be found on the GDPR portal.
Organisations may find that their professional trade bodies or regulators have sector specific guidance available.