On May 25th, 2018, The European Union’s General Data Protection Regulation goes into effect. The GDPR introduces many new data accountability obligations, data restrictions, and security parameters that every business in the world that processes European citizens’ information must comply with.
We've written many in-depth articles on GDPR. In this guide, we quickly summarize the key changes that all organizations need to consider in preparing for GDPR.
Increased Territorial Scope
Arguably the biggest change 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.
The fine schedule is as follows:
€10 million or 2% of global revenue of the prior year
If it is determined that noncompliance was related to technical measures:
- Not having records in order
- Failing to conduct impact assessments
- Failing to notify the supervising authority and data subject about a breach in a timely manner
€20 million or 4% of global revenue of the prior year
Applied to cases of noncompliance with key provisions of the GDPR.
Examples that fall under this category are:
- Non-adherence to the core principles of processing personal data
- Infringement of the rights of data subjects
- Transferring of personal data to third countries
- Failing to ensure an adequate level of data protection
*It is important to note that these rules apply to both controllers and processors, which means that 'clouds' will not be exempt from GDPR enforcement.
The conditions for consent have been strengthened. Companies will no longer be able to use 25-page terms and conditions documents full of difficult jargon and legalese. The request for consent must be given in an easily accessible form, with the purpose of 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.
Data Subject Rights
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
The right for data subjects to question the data controller as to whether or not 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. This change is a dramatic shift to data transparency and empowerment of data subjects.
Right to be Forgotten
Also known as Data Erasure, 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. Conditions for erasure include the data no longer being relevant to original purposes for processing, or a data subjects withdrawing consent.
The right for a data subject to receive the personal data concerning them, which they have previously provided in a 'commonly used and machine readable format' and have the right to transmit that data to another controller.
Privacy by Design
Privacy by design calls for the inclusion of data protection from the onset of the designing of systems, rather than an addition. Article 23 calls for controllers to hold and process only the data absolutely necessary for 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
Your organization is required to appoint a DPO for your business if the core activities of your company consist of personal data processing which:
- requires regular and systematic monitoring of individuals on a large scale; or
- is about special categories of data on a large scale and data relating to criminal convictions and offenses. ‘Special categories of data’ is the type of data which reveals racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership; genetic data, biometric data or data concerning health or sex life and sexual orientation.
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.
*Please note that even if none of the situations apply to your processing, and even if you are not established in the EU but only processing data of individuals who are in the EU, you may still have to appoint a DPO if it is required by the Member State law where your processing relates to.