Are you on top of GDPR? With only four months to go there has been less noise then we anticipated for the new EU data protection law (GDPR). From May 2018, this new regulation will affect marketers and protect users in all EU member states. For your convenience, we’ve put together the key aspects of GDPR in this article.
The new EU data protection law – the General Data Protection Regulation – represents a shake-up to the way businesses are required to collect, process and secure the personal data of the individuals they do business with. It makes no distinction between B2C or B2B companies.
The GDPR will come into force across all EU member states on the same day – 25 May 2018. There will be no transition period, so all businesses must be compliant with the new regime as soon as it comes into force on that date.
What is ‘personal data’?
‘Personal data’ means any information relating to an identified or identifiable natural person (‘data subject’). Here’s the exact explanation;
An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
What to do now?
Below are a couple of bullets/tips to do before May 25th:
1. Carry out an information audit
Look at how your organization collects and uses information. Where is data collected and stored? How do you track consent? What security measures do you currently have in place?
2. Raise awareness within your organization
Most employees will have some connection to personal data the organization holds and processes. Ensure they understand changes are coming, and the potential impact this could have on the business – and the potential penalties. Make sure senior management is engaged in the process, and establish cross-functional teams to tackle the challenges.
3. Review your privacy policies and statements
Look at what you currently tell users about how you use their data, and assess how far this goes to complying with the regulations.
4. Assess your policies and procedures
Do you have formal guidance in place on what to do if an individual wants to know what information you hold on them, or if you had a security breach? Understanding the current situation will give you a foundation to put in place the required documentation.
5. Get in touch with your technology providers
Compliance may require changes and amendments to your systems, with regard to how data is stored or secured. Contact your suppliers to understand what steps they’re taking to become compliant and support they’re offering their clients.
6. Find out whether you will need to appoint a Data Protection Officer (GDPR)
7. Look out for updated guidance
The 6 principles of GDPR
GDPR has six principles outlining how we need to process data:
- Processed lawfully, fairly and in a transparent manner in relation to individuals.
- Collected for specified, explicit and legitimate purposes and not processed beyond those.
- Adequate, relevant and limited to what’s necessary in relation to the purposes for which they are processed.
- Accurate and, where necessary, kept up to date.
- Kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed.
- Processed in a manner that ensures appropriate security of the personal data.
The 6 legal grounds to process personal data lawfully
That the data needs to be processed “lawfully” it says, but what does it really mean?
- The data subject has given consent
- It’s necessary for the performance of a contract
- It’s necessary for the controller to comply with a legal obligation
- It’s necessary to protect the vital interest of the data subject or other natural person
- It’s necessary to perform a task in the public interest
- It’s necessary for the purposes of the legitimate interest pursued by the controller or third party except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data.
This means that you’ll need to make clear to data subjects which legal ground you’re using for the basis of processing data and explain why in your privacy notice. The key action is to work out which of these legal grounds you intend to use to lawfully process data.
To consider: Individuals can object to data processing for legitimate interests (bullet #6) with the controller getting the opportunity to defend themselves, whereas where the controller uses consent (bullet #1), individuals have the right to withdraw that consent and has the ‘right to data erasure’. If you are unsure about whether legitimate interests apply, investigate with your legal team.
GDPR Key Changes
Increased territorial scope
One of the major changes to the regulatory landscape of data privacy comes with the extended jurisdiction of the GDPR, as it applies to all companies processing the personal data of data subjects residing in the Union, regardless of the company’s location. Previously, territorial applicability of the directive was ambiguous and referred to data process ‘in context of an establishment’. GPDR makes its applicability very clear – it will apply to the processing of personal data by controllers and processors in the EU, regardless of whether the processing takes place in the EU or not. The GDPR will also apply to the processing of personal data of data subjects in the EU by a controller or processor not established in the EU, where the activities relate to: offering goods or services to EU citizens (irrespective of whether payment is required) and the monitoring of behavior that takes place within the EU. Non-Eu businesses processing the data of EU citizens will also have to appoint a representative in the EU.
The conditions for consent have been strengthened, and 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. Consent must be clear and distinguishable from other matters and provided in an intelligible and easily accessible form, using clear and plain language. It must be as easy to withdraw consent as it is to give it.
Organizations under GDPR that breach the regulation can be fined up to 4% of their annual global turnover or €20 Million (whichever is greater). This is the maximum fine that can be imposed for the most serious infringements, e.g. not having sufficient customer consent to process data or violating the core of Privacy by Design concepts. There is a tiered approach to fines, e.g. a company can be fined 2% for not having their records in order (article 28), not notifying the supervising authority and data subject about a breach or not conducting impact assessment. It is important to note that these rules apply to both controllers and processors – meaning ‘clouds’ will not be exempt from GDPR enforcement.
Data Subject Rights
The rights for the data subjects has also been expanded, as shown in the below examples:
Under the GDPR, breach notification will become mandatory in all 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
Part of the expanded rights of data subjects outlined by the GDPR is the right for data subjects to obtain from the data controller confirmation as to whether 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.
The right to be forgotten 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. The conditions for erasure, as outlined in article 17, include the data no longer being relevant to original purposes for processing, or a data subjects withdrawing consent. It should also be noted that this right requires controllers to compare the subjects’ rights to “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 in a ‘commonly use and machine-readable format’ and have the right to transmit that data to another controller.
Privacy by design & data minimization
“Privacy by design” as a concept has existed for years now, but it is only just becoming part of a legal requirement with the GDPR. At its core, 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 organizational measures in an effective way to meet the requirements of this Regulation and protect the rights of data subjects”.
Article 23 calls for controllers to hold and process only the data absolutely necessaryfor the completion of its duties (data minimization), as well as limiting the access to personal data to those needing to act out the processing.
Data Protection Officers
Currently, controllers are required to notify their data processing activities with local DPAs (national Data Protection Authorities), which, for multinationals, can be a bureaucratic nightmare with most Member States having different notification requirements. Under GDPR it will not be necessary to submit notifications / registrations to each local DPA of data processing activities, nor will it be a requirement to notify / obtain approval for transfers based on the Model Contract Clauses (MCCs). Instead, there will be internal record keeping requirements, as further explained below, and 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. Importantly, the DPO:
- Must be appointed on the basis of professional qualities and, in particular, expert knowledge on data protection law and practices
- May be a staff member or an external service provider
- Contact details must be provided to the relevant DPA
- Must be provided with appropriate resources to carry out their tasks and maintain their expert knowledge
- Must report directly to the highest level of management
- Must not carry out any other tasks that could results in a conflict of interest.
If you need any help or advise on about GDPR, we’ll do our best to clarify and help. Please contact me, Kristoffer Wittström.
The information has been collated by W Communication Agency from the following sources:
- www.eugdpr.org: A resource to educate the public about the main elements of the General Data Protection Regulation.
- ico.org.uk: The UK’s independent authority set up to uphold information rights in the public interest, promoting openness by public bodies and data privacy for individuals.
- www.econsultancy.com: A resource for marketers and ecommerce professionals.
- www.b2bmarketing.net: A resource for B2B marketers.