The EU General Data Protection Regulation (GDPR) replaces the Data Protection Directive 95/46/EC and is designed to harmonize data privacy laws across Europe, to protect and empower all EU citizens data privacy and to reshape the way organizations across the region approach data privacy.
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 time in which the 1995 directive was established. Although the key principles of data privacy still hold true to the previous directive, many changes have been proposed, which are being summarised below.
Increased territorial scope
The biggest change is 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 GPDR 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.
Penalties have increased dramatically. Organizations in breach of GDPR can be fined up to 4% of their annual global turnover or €20 Million (whichever is the higher). This is the maximum fine that can be imposed for the most serious infringements. It is important to note that these rules apply to both controllers and processors, meaning ‘clouds’ will not be exempt from GDPR.
The conditions for consent have been strengthened, and companies will no longer be able to use long illegible terms and conditions. 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 easily accessible form, using clear and plain language. Withdrawal of consent to be made easy as it is to give it.
Notification of a breach
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
Under the GDPR, data subjects are being given expanded rights which include the right to obtain from the data controller a confirmation as to whether or not personal data concerning them is being processed, where and for what purpose. The controller is required to provide a copy of the personal data, 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/her personal data, cease further dissemination of the data, and potentially have third parties halt processing of the data. The conditions for erasure, include the data no longer being relevant to original purposes for processing, or the withdrawal of the consent by the data subject. It should also be noted that this right requires controllers to compare the subjects’ rights to “the public interest in the availability of the data” when considering such requests.
Portability of data
GDPR introduces data portability – 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 have the right to transmit that data to another controller.
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 it’s core, privacy by design calls for the inclusion of data protection from the onset of the designing of systems, rather than an addition. Controller must 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’. Controllers are required to hold and process only the data which is 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 (DPOs)
Organisations must keep internal records and an appointment of a DPO 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. Contact details must be provided to the relevant DPA. 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
- Must be provided with appropriate resources to carry out the pertinent tasks and maintain an expert knowledge
- Must report directly to the highest level of management
- Must not carry out other tasks that could result in a conflict of interest.