The General Data Protection Regulation (“GDPR”) came into force on 24 May 2016, and became directly applicable and enforceable in all EU Member States on 25th May 2018. With effect from that date organisations may face heavy fines for non-compliance.
The GDPR replaced the Data Protection Directive 95/46/EC and was designed to harmonise data privacy laws across Europe, to protect and empower all EU citizens data privacy and to reshape the way organisations across the EU approach data privacy.
The GDPR permits a number of national derogations. In the UK, the Data Protection Act 2018, which received Royal Assent on 23 May 2018, makes a number of detailed provisions relating to how the GDPR will apply in the UK.
In this article, we provide an overview of each of the primary changes to data protection legislation. If you would like more details in relation to GDPR and/or data protection legislation or would like to discuss a potential or existing issue, please contact us by telephone or by email at firstname.lastname@example.org
Key changes to pre-GDPR legislation
The aim of the GDPR is to protect all EU citizens from privacy and data breaches in an increasingly data-driven world that is vastly different from the world in which the 1995 directive was established. Although the key principles of data privacy arising from the previous directive have been retained, many changes have been proposed to the regulatory policies. The key changes arising from the GDPR and the impact, which they may have on business are summarised below.
Increased Territorial Scope (extra-territorial applicability) - The extended jurisdiction of the GDPR is, arguably, the biggest change to the regulatory landscape of data privacy. It applies to all companies processing the personal data of data subjects residing in the EU, regardless of the company’s location. The territorial applicability of the directive was previously ambiguous and referred to data process 'in context of an establishment'. This topic has arisen in a number of high profile court cases. However, GDPR now 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 behaviour 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.
Consent - The conditions for consent have been strengthened. 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.
Penalties – The GDPR provides that organisations can be fined up to 4% of their annual global turnover or €20 Million (whichever is greater) for breaching GDPR. This is the maximum fine that can be imposed for the most serious infringements (for example, not having sufficient customer consent to process data or violating the core of Privacy by Design concepts). There is a tiered approach to fines (for example 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.
What rights does a data subject have?
A person whose data has been collected has the following rights:
Breach Notification - The GDPR provides that breach notification is 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 GDPR gives data subjects the right to obtain from the data controller confirmation as to whether or not personal data concerning them is being processed, where it is being processed and for what purpose. In addition, the data controller must provide a copy of the personal data, free of charge, in an electronic format upon request. This right of access is a dramatic change to data transparency and empowerment of data subjects.
Right to be Forgotten - The right to be forgotten (which is also known as Data Erasure) 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 data controllers to compare the relevant subject’s rights to "the public interest in the availability of the data" when considering such requests.
Data Portability – The GDPR introduces the concept of data portability. This is 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 to have the right to transmit that data to another controller.
Privacy by Design – Whilst this concept has existed for many years, the GDPR has now made it a legal requirement. The GDPR provides that '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'. Essentially, privacy by design calls for the inclusion of data protection from the onset of the designing of systems, rather than as an addition. Article 23 calls for data controllers to hold and process only the data absolutely necessary for the completion of their duties (data minimisation), as well as limiting the access to personal data to those needing to act out the processing.
Data Protection Officers – Prior to the GDPR, data controllers were required to notify their data processing activities with local DPAs. For multinationals, this could be a bureaucratic nightmare with most Member States having different notification requirements. However, under GDPR it will not be necessary to submit notifications or registrations of data processing activities to each local DPA, nor will it be a requirement to notify or obtain approval for transfers based on the Model Contract Clauses (MCCs). Instead, there are internal record keeping requirements. In addition, the appointment of a Data Protection Officer is 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 Data Protection Officer:
If you would like more information or would like to discuss a potential or existing matter, please contact us by telephone or by email at email@example.com