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General-Data-Protection-Regulation

GDPR (General Data Protection Regulation)

The General Data Protection Regulation – more commonly referred to as GDPR – will apply to all organisations worldwide that process personal data of European Union (EU) citizens, effectively making it the first global data protection law. Its introduction is based on the fact that many businesses and services operate across borders, making international consistency around data protection laws and rights crucial both to organisations and individual alike. The growing digital economy also makes it important for safeguards to be in place regarding data, and the individuals to whom it applies.

In the UK, GDPR will apply from May 25th 2018, and our withdrawal from the EU (Brexit) will not affect this. It will replace the UK Data Protection Act 1998 (DPA).

If your organisation falls under the description above, it will be under a legal obligation to comply with GDPR. The GDPR places greater emphasis on the documentation that data controllers must keep to demonstrate their accountability. Compliance with all the key areas will require your organisation to review its approach to governance and how it manages data protection as a corporate issue. One aspect of this might be to review the contracts and other arrangements you have in place when sharing data with other organisations.

Every country in Europe will have a regulatory body to oversee the use of, provide advice on, and enforce the GDPR. In the UK this body is the Information Commissioner’s Office (ICO).

This overview – based on information from the ICO – highlights the GDPR’s key themes to help you understand the new legal framework in the EU. It explains the similarities with the existing Data Protection Act, and describes some of the new and different requirements. It is for those who have day-to-day responsibility for data protection.

Who does the GDPR apply to?

  • The GDPR applies to ‘controllers’ and ‘processors’. The definitions are broadly the same as under the DPA – ie the controller says how and why personal data is processed and the processor acts on the controller’s behalf. If you are currently subject to the DPA, it is likely that you will also be subject to the GDPR.
    If you are a processor, the GDPR places specific legal obligations on you; for example, you are required to maintain records of personal data and processing activities. You will have significantly more legal liability if you are responsible for a breach. These obligations for processors are a new requirement under the GDPR.
    However, if you are a controller, you are not relieved of your obligations where a processor is involved – the GDPR places further obligations on you to ensure your contracts with processors comply with the GDPR.
  • The GDPR applies to processing carried out by organisations operating within the EU. It also applies to organisations outside the EU that offer goods or services to individuals in the EU.
  • The GDPR does not apply to certain activities including processing covered by the Law Enforcement Directive, processing for national security purposes and processing carried out by individuals purely for personal/household activities.

What information does the GDPR apply to?

Personal Data

Like the DPA, the GDPR applies to ‘personal data’. However, the GDPR’s definition is more detailed and makes it clear that information such as an online identifier – eg an IP address – can constitute personal data. The more expansive definition provides for a wide range of personal identifiers to constitute personal data, reflecting changes in technology and the way organisations collect information about people.

For most organisations, keeping HR records, customer lists, or contact details etc, the change to the definition should make little practical difference. You can assume that if you hold information that falls within the scope of the DPA, it will also fall within the scope of the GDPR.

The GDPR applies to both automated personal data and to manual filing systems where personal data is accessible according to specific criteria. This is wider than the DPA’s definition and could include chronologically ordered sets of manual records containing personal data.

Personal data that has been pseudonymised – eg key-coded – can fall within the scope of the GDPR depending on how difficult it is to attribute the pseudonym to a particular individual.

Sensitive personal data

The GDPR refers to sensitive personal data as “special categories of personal data” (see Article 9). These categories are broadly the same as those in the DPA, but there are some minor changes.

For example, the special categories specifically include genetic data, and biometric data where processed to uniquely identify an individual.

Personal data relating to criminal convictions and offences are not included, but similar extra safeguards apply to its processing (see Article 10).

Preparing for the General Data Protection Regulation (GDPR) 12 steps to take now

 
1

Awareness

You should make sure that decision makers and key people in your organisation are aware that the law is changing to the GDPR. They need to appreciate the impact this is likely to have.

2

Information you hold

You should document what personal data you hold, where it came from and who you share it with. You may need to organise an information audit.

3

Communicating privacy information

You should review your current privacy notices and put a plan in place for making any necessary changes in time for GDPR implementation.

4

Individuals’ rights

You should check your procedures to ensure they cover all the rights individuals have, including how you would delete personal data or provide data electronically and in a commonly used format.

5

Subject access requests

You should update your procedures and plan how you will handle requests within the new timescales and provide any additional information.

6

Lawful basis for processing personal data

You should identify the lawful basis for your processing activity in the GDPR, document it and update your privacy notice to explain it.

7

Consent

You should review how you seek, record and manage consent and whether you need to make any changes. Refresh existing consents now if they don’t meet the GDPR standard.

8

Children

You should start thinking now about whether you need to put systems in place to verify individuals’ ages and to obtain parental or guardian consent for any data processing activity.

9

Data breaches

You should make sure you have the right procedures in place to detect, report and investigate a personal data breach.

10

Data Protection by Design and Data Protection Impact Assessments

You should familiarise yourself now with the ICO’s code of practice on Privacy Impact Assessments as well as the latest guidance from the Article 29 Working Party, and work out how and when to implement them in your organisation.

11

Data Protection Officers

You should designate someone to take responsibility for data protection compliance and assess where this role will sit within your organisation’s structure and governance arrangements. You should consider whether you are required to formally designate a Data Protection Officer.

12

International

If your organisation operates in more than one EU member state (ie you carry out cross-border processing), you should determine your lead data protection supervisory authority. Article 29 Working Party guidelines will help you do this.

Awareness

You should make sure that decision makers and key people in your organisation are aware that the law is changing to the GDPR. They need to appreciate the impact this is likely to have and identify areas that could cause compliance problems under the GDPR. It would be useful to start by looking at your organisation’s risk register, if you have one.

Implementing the GDPR could have significant resource implications, especially for larger and more complex organisations. You may find compliance difficult if you leave your preparations until the last minute.

Information you hold

You should document what personal data you hold, where it came from and who you share it with. You may need to organise an information audit across the organisation or within particular business areas.

The GDPR requires you to maintain records of your processing activities. It updates rights for a networked world. For example, if you have inaccurate personal data and have shared this with another organisation, you will have to tell the other organisation about the inaccuracy so it can correct its own records. You won’t be able to do this unless you know what personal data you hold, where it came from and who you share it with. You should document this. Doing this will also help you to comply with the GDPR’s accountability principle, which requires organisations to be able to show how they comply with the data protection principles, for example by having effective policies and procedures in place.

Communicating privacy information

You should review your current privacy notices and put a plan in place for making any necessary changes in time for GDPR implementation.

When you collect personal data you currently have to give people certain information, such as your identity and how you intend to use their information. This is usually done through a privacy notice. Under the GDPR there are some additional things you will have to tell people. For example, you will need to explain your lawful basis for processing the data, your data retention periods and that individuals have a right to complain to the ICO if they think there is a problem with the way you are handling their data. The GDPR requires the information to be provided in concise, easy to understand and clear language.

The ICO’s Privacy notices code of practice reflects the new requirements of the GDPR.

Individuals’ rights

You should check your procedures to ensure they cover all the rights individuals have, including how you would delete personal data or provide data electronically and in a commonly used format.

The GDPR includes the following rights for individuals:

  • the right to be informed;
  • the right of access;
  • the right to rectification;
  • the right to erasure;
  • the right to restrict processing;
  • the right to data portability;
  • the right to object; and
  • the right not to be subject to automated decision-making including profiling.

On the whole, the rights individuals will enjoy under the GDPR are the same as those under the DPA but with some significant enhancements. If you are geared up to give individuals their rights now, then the transition to the GDPR should be relatively easy. This is a good time to check your procedures and to work out how you would react if someone asks to have their personal data deleted, for example. Would your systems help you to locate and delete the data? Who will make the decisions about deletion?

The right to data portability is new. It only applies:

You should consider whether you need to revise your procedures and make any changes. You will need to provide the personal data in a structured commonly used and machine readable form and provide the Preparing for the General Data Protection Regulation (GDPR): 12 steps to take now nformation free of charge.

  • to personal data an individual has provided to a controller;
  • where the processing is based on the individual’s consent or for the
  • performance of a contract; and
  • when processing is carried out by automated means.

Subject access requests

You should update your procedures and plan how you will handle requests to take account of the new rules:

  • In most cases you will not be able to charge for complying with a request.
  • You will have a month to comply, rather than the current 40 days.
  • You can refuse or charge for requests that are manifestly unfounded or excessive.
  • If you refuse a request, you must tell the individual why and that they have the right to complain to the supervisory authority and to a judicial remedy. You must do this without undue delay and at the latest, within one month.

If your organisation handles a large number of access requests, consider the logistical implications of having to deal with requests more quickly. You could consider whether it is feasible or desirable to develop systems that allow individuals to access their information easily online.

Lawful basis for processing personal data

You should identify the lawful basis for your processing activity in the GDPR, document it and update your privacy notice to explain it.

Many organisations will not have thought about their lawful basis for processing personal data. Under the current law this does not have many practical implications. However, this will be different under the GDPR because some individuals’ rights will be modified depending on your lawful basis for processing their personal data. The most obvious example is that people will have a stronger right to have their data deleted where you use consent as your lawful basis for processing.

You will also have to explain your lawful basis for processing personal data in your privacy notice and when you answer a subject access request. The lawful bases in the GDPR are broadly the same as the conditions for processing in the DPA. It should be possible to review the types of processing activities you carry out and to identify your lawful basis for doing so. You should document your lawful bases in order to Preparing for the General Data Protection Regulation (GDPR): 12 steps to take now help you comply with the GDPR’s ‘accountability’ requirements.

Children

You should start thinking now about whether you need to put systems in place to verify individuals’ ages and to obtain parental or guardian consent for any data processing activity.

For the first time, the GDPR will bring in special protection for children’s personal data, particularly in the context of commercial internet services such as social networking. If your organisation offers online services (‘information society services’) to children and relies on consent to collect information about them, then you may need a parent or guardian’s consent in order to process their personal data lawfully. The GDPR sets the age when a child can give their own consent to this processing at 16 (although this may be lowered to a minimum of 13 in the UK). If a child is younger then you will need to get consent from a person holding ‘parental responsibility’.

This could have significant implications if your organisation offers online services to children and collects their personal data. Remember that consent has to be verifiable and that when collecting children’s data your privacy notice must be written in language that children will understand.

Data breaches

You should make sure you have the right procedures in place to detect, report and investigate a personal data breach.

Some organisations are already required to notify the ICO (and possibly some other bodies) when they suffer a personal data breach. The GDPR introduces a duty on all organisations to report certain types of data breach to the ICO, and in some cases, to individuals. You only have to notify the ICO of a breach where it is likely to result in a risk to the rights and freedoms of individuals – if, for example, it could result in discrimination, damage to reputation, financial loss, loss of confidentiality or any other significant economic or social disadvantage.

Where a breach is likely to result in a high risk to the rights and freedoms of individuals, you will also have to notify those concerned directly in most cases.

You should put procedures in place to effectively detect, report and investigate a personal data breach. You may wish to assess the types of personal data you hold and document where you would be required to notify the ICO or affected individuals if a breach occurred. Larger organisations will need to develop policies and procedures for managing data breaches. Failure to report a breach when required to do so could result in a fine, as well as a fine for the breach itself.

Data Protection by Design and Data Protection Impact Assessments

It has always been good practice to adopt a privacy by design approach and to carry out a Privacy Impact Assessment (PIA) as part of this. However, the GDPR makes privacy by design an express legal requirement, under the term ‘data protection by design and by default’. It also makes PIAs – referred to as ‘Data Protection Impact Assessments’ or DPIAs – mandatory in certain circumstances.

A DPIA is required in situations where data processing is likely to result in high risk to individuals, for example:

  • where a new technology is being deployed;
  • where a profiling operation is likely to significantly affect individuals; or
  • where there is processing on a large scale of the special categories of data.

If a DPIA indicates that the data processing is high risk, and you cannot sufficiently address those risks, you will be required to consult the ICO to seek its opinion as to whether the processing operation complies with the GDPR.

You should therefore start to assess the situations where it will be necessary to conduct a DPIA. Who will do it? Who else needs to be involved? Will the process be run centrally or locally? You should also familiarise yourself now with the guidance the ICO has produced on PIAs as well as guidance from the Article 29 Working Party, and work out how to implement them in your organisation. This guidance shows how PIAs can link to other organisational processes such as risk management and project management.

Data Protection Officers

You should designate someone to take responsibility for data protection compliance and assess where this role will sit within your organisation’s structure and governance arrangements. You should consider whether you are required to formally designate a Data Protection Officer (DPO). You must designate a DPO if you are:

  • a public authority (except for courts acting in their judicial capacity);
  • an organisation that carries out the regular and systematic monitoring of individuals on a large scale; or
  • an organisation that carries out the large scale processing of special categories of data, such as health records, or information about criminal convictions. The Article 29 Working Party has produced guidance for organisations on the designation, position and tasks of DPOs.

It is most important that someone in your organisation, or an external data protection advisor, takes proper responsibility for your data protection compliance and has the knowledge, support and authority to carry out their role effectively.

International

If your organisation operates in more than one EU member state, you should determine your lead data protection supervisory authority and document this.

The lead authority is the supervisory authority in the state where your main establishment is. Your main establishment is the location where your central administration in the EU is or else the location where decisions about the purposes and means of processing are taken and implemented.

This is only relevant where you carry out cross-border processing – ie you have establishments in more than one EU member state or you have a single establishment in the EU that carries out processing which substantially affects individuals in other EU states.

If this applies to your organisation, you should map out where your organisation makes its most significant decisions about its processing activities. This will help to determine your ‘main establishment’ and therefore your lead supervisory authority. The Article 29 Working party has produced guidance on identifying a controller or processor’s lead supervisory authority.