The General Data Protection Regulation (GDPR) will come into effect on 25 May 2018. The GDPR constitutes the biggest change to the data protection regime in the EU since the 1995 Data Protection Directive.
What is the GDPR?
The EU's General Data Protection Regulation (GDPR) is the result of four years of work by the EU to bring data protection legislation into line with new, previously unforeseen ways that data is now used.
Currently, the UK relies on the Data Protection Act 1998, which was enacted following the 1995 EU Data Protection Directive, but this will be superseded by the new legislation. It introduces tougher fines for non-compliance and breaches, and gives people more say over what companies can do with their data. It also makes data protection rules more or less identical throughout the EU.
Why was the GDPR drafted?
The drivers behind the GDPR are twofold. Firstly, the EU wants to give people more control over how their personal data is used, bearing in mind that many companies like Facebook and Google swap access to people's data for use of their services. The current legislation was enacted before the internet and cloud technology created new ways of exploiting data, and the GDPR seeks to address that. By strengthening data protection legislation and introducing tougher enforcement measures, the EU hopes to improve trust in the emerging digital economy.
Secondly, the EU wants to give businesses a simpler, clearer legal environment in which to operate, making data protection law identical throughout the single market (the EU estimates this will save businesses a collective €2.3 billion a year).
When will the GDPR apply?
The GDPR will apply in all EU member states from 25 May 2018. Because GDPR is a regulation, not a directive, the UK does not need to draw up new legislation - instead, it will apply automatically.
So who does the GDPR apply to?
'Controllers' and 'processors' of data need to abide by the GDPR. A data controller states how and why personal data is processed, while a processor is the party doing the actual processing of the data. So the controller could be any organisation, from a profit-seeking company to a charity or government. A processor could be an IT firm doing the actual data processing.
Even if controllers and processors are based outside the EU, the GDPR will still apply to them so long as they're dealing with data belonging to EU residents.
It's the controller's responsibility to ensure their processor abides by data protection law and processors must themselves abide by rules to maintain records of their processing activities. If processors are involved in a data breach, they are far more liable under GDPR than they were under the Data Protection Act.
When can I process data under the GDPR?
Once the legislation comes into effect, controllers must ensure personal data is processed lawfully, transparently, and for a specific purpose. Once that purpose is fulfilled and the data is no longer required, it should be deleted.
What do you mean by 'lawful'?
'Lawfully' has a range of alternative meanings, not all of which need apply. Firstly, it could be lawful if the subject has consented to their data being processed. Alternatively, lawful can mean to comply with a contract or legal obligation; to protect an interest that is "essential for the life of" the subject; if processing the data is in the public interest; or if doing so is in the controller's legitimate interest - such as preventing fraud.
How do I get consent under the GDPR?
Consent must be an active, affirmative action by the data subject, rather than the passive acceptance under some current models that allow for pre-ticked boxes or opt-outs.
Controllers must keep a record of how and when an individual gave consent, and that individual may withdraw their consent whenever they want. If your current model for obtaining consent doesn't meet these new rules, you'll have to bring it up to scratch or stop collecting data under that model when the GDPR applies in 2018.
What counts as personal data under the GDPR?
The EU has substantially expanded the definition of personal data under the GDPR. To reflect the types of data organisations now collect about people, online identifiers such as IP addresses now qualify as personal data. Other data, like economic, cultural or mental health information, are also considered personally identifiable information.
Pseudonymised personal data may also be subject to GDPR rules, depending on how easy or hard it is to identify whose data it is.
Anything that counted as personal data under the Data Protection Act also qualifies as personal data under the GDPR.
When can people access the data we store on them?
People can ask for access at "reasonable intervals", and controllers must generally respond within one month. The GDPR requires that controllers and processors must be transparent about how they collect data, what they do with it, and how they process it and must be clear (using plain language) in explaining these things to people.
What's the 'right to be forgotten'?
Individuals also have the right to demand that their data is deleted if it's no longer necessary to the purpose for which it was collected. This is known as the 'right to be forgotten'. Under this rule, they can also demand that their data is erased if they've withdrawn their consent for their data to be collected, or object to the way it is being processed.
The controller is responsible for telling other organisations (for instance, Google) to delete any links to copies of that data, as well as the copies themselves.
What if they want to move their data elsewhere?
Controllers must now store people's information in commonly used formats (like CSV files), so that they can move a person's data to another organisation (free of charge) if the person requests it. Controllers must do this within one month.
What if we suffer a data breach?
It's your responsibility to inform your data protection authority of any data breach that risks people's rights and freedoms within 72 hours of your organisation becoming aware of it. The UK authority is the Information Commissioner's Office. Information commissioner Elizabeth Denham believes the authority needs more resources to cope with policing GDPR, and responding to organisations who notify it of breaches. In March 2017, she told the EU Home Affairs Sub-Committee that more funding was necessary to recruit and retain skilled people.
That deadline is tight enough to mean that you probably won't know every detail of a breach after discovering it. However, your initial contact with your data protection authority should outline the nature of the data that's affected, roughly how many people are impacted, what the consequences could mean for them, and what measures you've already actioned or plan to action in response.
But even before you call the data protection authority, you should tell the people affected by the data breach. Those who fail to meet the 72-hour deadline could face a penalty of up to 2% of their annual worldwide revenue, or €10 million, whichever is higher.
If you don't follow the basic principles for processing data, such as having a legal basis for doing so, ignore individuals' rights over their data, or transfer data to another country, the fines are even worse. Your data protection authority could issue a penalty of up to €20 million or 4% of your global annual turnover, whichever is greater.
If you take recently issued fines issued by the ICO - which can hand out a maximum penalty of £500,000 - and scale them up under GDPR, you can see how much tougher the penalties for getting data protection wrong could soon become.
So under GDPR, TalkTalk's record £400,000 fine would actually total £59 million - that's a pretty big chunk of the telco's third quarter 2016 revenue, which was £435 million. Meanwhile, the ICO's total issued fines for 2016, which amounted to £880,500, would become £69 million from 25 May 2018, according to risk mitigation firm NCC Group - 79 times higher.
However, it's important to note that while the maximum fines that can be issued will become much higher under GDPR, the legislation stipulates that they must remain "proportionate" to the breach. Also, if you can demonstrate that you work hard to ensure your organisation is compliant with GDPR, the ICO would likely not issue as high a fine in the event of a breach as it would otherwise.
But what about Brexit?
Yes, the UK is leaving the EU - but because the UK government only triggered Article 50 in March, which sets in motion the act of leaving the EU within a two-year timeframe (though it could take longer), means the GDPR will take effect before the legal consequences of the Brexit vote, meaning the UK must still comply for the time being.
Does your organisation comply with the new data protection rules?
Do we need a data protection officer?
Any public body carrying out data processing needs to employ a data protection officer, as do companies whose core activities involve data processing that requires they regularly monitor individuals "on a large scale", according to the GDPR legislation, though public bodies are at an advantage, in that several can share the same data protection officer. Organisations should give the contact details of this person to their data protection authority.
Alright, so how do we go about meeting the GDPR requirements?
The best advice is to start preparing for it as early as possible - 25 May 2018 might sound far away, but there's a lot to get right. Immediately, you should seek to employ a data protection officer if necessary, and check the current state of your data protection rules and policies, particularly consent.
If you work with any third-party suppliers who would count as processors, check what their data protection policies are and whether they comply - if they don't, it might be time to tender again.
It's also worth looking out for technology that will help you meet requirements around data deletion and data portability.
Lisa Hunter is an experienced Marketing, Events and Project Manager. She has over 10 years’ experience working in the IT and marketing industry, delivering strategic marketing support and managing creative projects for a wide-range of clients. In this blog she shares her knowledge and experiences…we hope you enjoy it.