GDPR has arrived
GDPR – The General Data Protection Regulations came into force on May 25th, 2018. It applies to all organisations throughout the UK and Europe
The biggest changes is to have a unified standard across the EU and UK and individuals can now ask for their information to be removed to be known as the right to be forgotten
if your company is struggling with GDPR, unsure of what you should do then please contact us
GDPR The Key Changes
It’s now the same all over the EU
Arguably the biggest change to the regulatory landscape of data privacy comes with making GDPR, apply to all organisations processing the personal data of data subjects residing in the EU and UK regardless of the company’s location. Previously, this was almost impossible to police with different sets of laws in different countries. This topic has arisen in a number of high profile court cases. GPDR makes its a unified regulation across a countries in the EU – 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)
The conditions for consent have been changed, and organisations will no longer be able to use long illegible terms and conditions, as the request for consent must be given in an intelligible and easily accessible format. including the reason for data processing attached to that consent. Consent must be clear and clear & intelligible and easily accessible form, using clear and plain language. It must be separated from any other forms. It must be as easy to withdraw consent as it is to give it.
Right to Access
Part of the new rights of data subjects outlined by the GDPR is the right for data subjects to obtain from the data controller confirmation as to whether or not personal data concerning them is being held, processed, where and for what purpose. Furthermore , the controller will provide a copy of the personal data file free of charge, in an electronic format.
Right to be Forgotten
The right to be forgotten entitles the data subject to have the data controller erase his 0r her personal data from theri systems, cease further dissemination of the data, and potentially have third parties halt processing of the data. The conditions for erasure, as outlined in include the data no longer being relevant to original purposes for processing, or a data subjects withdrawing consent. This right requires controllers to weigh the subjects’ rights to “the public interest in the availability of the data”
GDPR introduces data portability – the right for a data subject to receive the personal data concerning them, which they have previously provided in an electronic format and have the right to send that data to another controller.
Under GDPR rules organisations in breach of GDPR can be fined up to 4% of 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 an 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 Breach Notification
Under the GDPR, Data 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.
Privacy by Design
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 organisational measures..in an effective way.. in order to meet the requirements of this Regulation and protect the rights of data subjects’. Article 23 calls for data controllers to hold and process only the data absolutely necessary for the completion of its duties (data minimisation), as well as limiting the access to personal data to those needing to act out the processing and ensuring other staff in the organisation cannot get unauthorised access.
Data Protection Officers
Currently, controllers are required to notify their data processing activities with the |ICO or the local Data protection agency, 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 result in a conflict of interest.