The EU General Data Protection Regulation (GDPR)
The EU General Data Protection Regulation (GDPR) superseded the UK Data Protection Act 1998 on 25 May 2018. Significant and wide-reaching in scope, the new law brings a 21st century approach to data protection. It expands the rights of individuals to control how their personal data is collected and processed, and places a range of new obligations on organisations to be more accountable for data protection.
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GDPR compliance is not just a matter of ticking a few boxes; the Regulation demands that you be able to demonstrate compliance with its data processing principles. This involves taking a risk-based approach to data protection, ensuring appropriate policies and procedures are in place to deal with the transparency, accountability and individuals’ rights provisions, as well as building a workplace culture of data privacy and security.
For many organisations, achieving GDPR compliance will be a year-long journey – if not longer. You should prioritise tackling those areas where a lack of action leaves your organisation exposed. Where an infringement occurs, demonstrating you have made a start could help reduce potential penalties.
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The business benefits of the GDPR
- Build customer trust
- Improve brand image and reputation
- Improve data governance
- Improve information security
- Improve competitive advantage
Brexit and the GDPR
UK organisations handling personal data will still need to comply with the GDPR, regardless of Brexit. The GDPR will come into force before the UK leaves the EU, and the government has confirmed that the Regulation will apply, a position that has been stated by the Information Commissioner’s Office (ICO).
The new Data Protection Act has transposed the GDPR into UK law, and will continue to apply post-Brexit. The Act also includes a number of agreed modifications to the GDPR in areas such as academic research, financial services and child protection. Learn more >>
Post-Brexit any cross-border data flows between the EU and the UK may no longer carry automatic adequate safeguards. Accordingly, the UK Government is seeking an ‘adequacy decision’ from the EU to continue to share personal data. If this is not forthcoming, other options include seeking a bilateral agreement similar to the EU-US Privacy Shield, or for organisations to implement standard contract clauses or binding corporate rules that would add complexity and cost to data transfers. International organisations should consider Brexit implications in their GDPR planning.
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The GDPR applies to personal data. This is any information that can directly or indirectly identify a natural person, and can be in any format. The Regulation places much stronger controls on the processing of special categories of personal data. The inclusion of genetic and biometric data is new.
- Email address
- IP address
- Location data
- Online behaviour (cookies)
- Profiling and analytics data
Special categories of personal data
- Political opinions
- Trade union membership
- Sexual orientation
- Health information
- Biometric data
- Genetic data
The wider scope
The GDPR applies to all EU organisations – whether commercial business, charity or public authority – that collect, store or process the personal data of individuals residing in the EU, even if they’re not EU citizens. Organisations based outside the EU that offer goods or services to EU residents, monitor their behaviour or process their personal data will be subject to the GDPR.
Service providers (data processors) that process data on behalf of an organisation come under the remit of the GDPR and will have specific compliance obligations. An example might be a company that processes your payroll or a Cloud provider that offers data storage.
Data protection principles
Personal data must be processed according to the six data protection principles:
- Processed lawfully, fairly and transparently.
- Collected only for specific legitimate purposes.
- Adequate, relevant and limited to what is necessary.
- Must be accurate and kept up to date.
- Stored only as long as is necessary.
- Ensure appropriate security, integrity and confidentiality.
Accountability and governance
You must be able to demonstrate compliance with the GDPR:
- The establishment of a governance structure with roles and responsibilities.
- Keeping a detailed record of all data processing operations.
- The documentation of data protection policies and procedures.
- Data protection impact assessments (DPIAs) for high-risk processing operations. Learn more >>
- Implementing appropriate measures to secure personal data.
- Staff training and awareness.
- Where necessary, appoint a data protection officer.
Data protection by design and by default
There is a requirement to build effective data protection practices and safeguards from the very beginning of all processing:
- Data protection must be considered at the design stage of any new process, system or technology.
- A DPIA is an integral part of privacy by design.
- The default collection mode must be to gather only the personal data that is necessary for a specific purpose.
You must identify and document the lawful basis for any processing of personal data. The lawful bases are:
- Direct consent from the individual;
- The necessity to perform a contract;
- Protecting the vital interests of the individual;
- The legal obligations of the organisation;
- Necessity for the public interest; and
- The legitimate interests of the organisation.
There are stricter rules for obtaining consent:
- Consent must be freely given, specific, informed and unambiguous.
- A request for consent must be intelligible and in clear, plain language.
- Silence, pre-ticked boxes and inactivity will no longer suffice as consent.
- Consent can be withdrawn at any time.
- Consent for online services from a child under 13 is only valid with parental authorisation.
- Organisations must be able to evidence consent.
Privacy rights of individuals
Individuals’ rights are enhanced and extended in a number of important areas:
- The right of access to personal data through subject access requests.
- The right to correct inaccurate personal data.
- The right in certain cases to have personal data erased.
- The right to object.
- The right to move personal data from one service provider to another (data portability).
Transparency and privacy notices
Organisations must be clear and transparent about how personal data is going to be processed, by whom and why.
- Privacy notices must be provided in a concise, transparent and easily accessible form, using clear and plain language.
Data transfers outside the EU
The transfer of personal data outside the EU is only allowed:
- Where the EU has designated a country as providing an adequate level of data protection;
- Through model contracts or binding corporate rules; or
- By complying with an approved certification mechanism, e.g. EU-US Privacy Shield.
Data security and breach reporting
Personal data needs to be secured against unauthorised processing and against accidental loss, destruction or damage.
- Data breaches must be reported to the data protection authority within 72 hours of discovery.
- Individuals impacted should be told where there exists a high risk to their rights and freedoms, e.g. identity theft, personal safety.
Data protection officer (DPO)
The appointment of a DPO is mandatory for:
- Public authorities;
- Organisations involved in high-risk processing; and
- Organisations processing special categories of data.
A DPO has set tasks:
- Inform and advise the organisation of its obligations.
- Monitor compliance, including awareness raising, staff training and audits.
- Cooperate with data protection authorities and act as a contact point.
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