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Frequently Asked Questions – everything you need to know about GDPR

The most comprehensive reform to data security and privacy in the last 20 years has come into effect: the General Data Protection Regulation (GDPR). Designed to harmonise data security and privacy laws across the European Union, the GDPR will transform data acquisition, processing and management as we know it.

Therefore, we have compiled a list of the most frequently asked questions in regards to the GDPR and provided a series of answers.

OVERVIEW OF THE REGULATION (EXTRACTED FROM THE GDPR WEBSITE)

You can find out additional information about GDPR by visiting the dedicated website. 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 to the regulatory policies; the key points of the GDPR as well as information on the impacts it will have on business can be found below. Increased Territorial Scope (extra-territorial applicability). 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. Previously, territorial applicability of the directive was ambiguous and referred to data process ‘in context of an establishment’. This topic has arisen in a number of high profile court cases. GPDR 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.

PENALTIES

Under GDPR 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 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.

CONSENT

The conditions for consent have been strengthened, and 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.

DATA SUBJECT RIGHTS

BREACH NOTIFICATION

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

Part of the expanded 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 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. 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 controllers to compare the subjects’ rights to “the public interest in the availability of the data” when considering such requests.

DATA PORTABILITY

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 used 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 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 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.

DATA PROTECTION OFFICERS

Currently, controllers are required to notify their data processing activities with local DPAs, 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 results in a conflict of interest

Note – Interested in our DPO Services?  Contact us for more information.

The United Kingdom General Data Protection Regulation (UK-GDPR) is essentially the same law as the European GDPR, only changed to accommodate domestic areas of law.

It was drafted from the EU GDPR law text and revised so as to read United Kingdom instead of Union and domestic law rather than EU law.

This means that the core definitions and legal terminology now famous from the European GDPR, such as personal data and the rights of data subjects, controller and processor (and their need for legal bases for processing, such as prior consent) are all to be found in the UK-GDPR.

However, the UK-GDPR does expand on – and deviate from – the EU GDPR in significant ways that will make changes to the legal landscape of data protection in the UK.

These changes are found in the UK government’s Data Protection, Privacy and Electronic Communications (EU Exit) Regulation (DPPEC regulation).

This regulation changes and shapes the European GDPR into the domestic UK-GDPR, as well as revising the Data Protection Act 2018.

In nearly all organisations the risk exposure of a data breach is extremely high.  The financial penalties associated with these can also be between 2% and 4% of your turnover for each breach.

Therefore you need to mitigate the risk of a successful breach.  We partner with CYBER21, a cyber security organisation that provides services and technical solutions to significantly reduce this risk.

We offer a free DPO discussion.  You can schedule a Microsoft Teams call with a member of our team and we can run through all that is required to comply with GDPR.

The call will last about 45 minutes after which you will know the majority of what needs to be done in your organisation to fully comply with GDPR (Data Protection Act 2018.

Schedule the call

At this point in time, the full impact of the end of the transition period isn’t fully clear, and what will be required hasn’t yet been completely decided.  However, up-to-date information can be obtained on this via the ICO’s website.

The ICO have provided a useful tool for small businesses to assess the impact of the end of the transition period.

The General Data Protection Regulation is a new, European-wide law that replaces the Data Protection Act 1998 in the UK. It places greater obligations on how organisations handle personal data. It comes into effect on 25 May 2018. Fundamentally, this is designed to standardise the way that data privacy is managed across the EU.

To be in-scope of GDPR you have to be processing information about the ‘natural person’ of an EU citizen. The GDPR applies to ‘personal data’, which means any information relating to an identifiable person who can be directly or indirectly identified, in particular by reference to an identifier. You can find more details in the Key Definitions section of our Guide to the GDPR.

The GDPR applies to processing carried out by organisations operating within the EU. It also applies to organisations outside the EU that offer goods or services to individuals in the EU. In reality, nearly all organisations are in scope for GDPR.  GDPR does not discriminate between the sizes of organisations – it applies to all that process personal data of EU citizens.

The Information Commissioners Office (ICO) offers some guidance. We are also here to help. As well as these FAQs, we undertake a full GDPR Readiness Assessment to prepare your organisation for GDPR. The outcome of this assessment will provide you with a clear understanding of what you need to do to become compliant as well as an assessment of the key risks you are exposed to.

Check the status of your compliance with our free online GDPR self-assessment.

If you process personal data, you will have to comply with the GDPR, regardless of your size. Size is a factor in a range of areas including the requirement to maintain records of processing but we would recommend that you always complete a personal data processing inventory. Some small organisations that process sensitive data may also require a Data Protection Officer (DPO) – See our DPO as a Service information.

All processing of personal data has to have a ‘legal basis’ for the processing. Some marketing data may have this, depending upon how it was gathered and whether it is aligned to a current contractual relationship between the controller of the data and the data subject. In reality, most marketing databases contain both historical customer data and prospects data. In both examples, there may be no legal basis for for the data to be retained.

One of the key principles of GDPR is that processing of personal data is only continued for the time period required for the processing. Therefore, you cannot keep the data indefinitely.  There has to be an agreed retention period for all personal data that you process. Data retention is a major issue for most organisations, but it is important to consider that any legal obligations for data retention override the requirement of the GDPR.

The simple answer is probably ‘yes’. GDPR requires you to establish a processing contract with your processors of personal data that you control as the controller. This is very important in developing a strong GDPR compliant framework as it’s necessary to ensure that all your third parties are aware of their obligations under GDPR and are actively keeping your data safe.

The main thing to remember here is that this is a key principle of GDPR.  You have to ensure that any personal data that you control and process is kept safe. This is quite difficult to achieve and our approach is to have a clear understanding of the risks that each processing activity exposes to the security of the data.  Therefore, unless you have undertaken Data Privacy Impact Assessments (DPIAs), you cannot demonstrate that you know the data is safe.  Obviously, you need a good security policy, and will ideally have accreditations (e.g. ISO 27001 or Cyber Essentials) or utilise other security features such as encryption.

Complete our free online security self-assessment.

This depends on what type of organisation you are and the type of processing that you do? More information is available on our DPO as a Service page. However, if you want to demonstrate a robust approach to privacy management, we would advocate that you consider outsourcing this role to a company such as ourselves.  This is a key component of your overall GDPR compliance framework.

Alternatively, please complete our free online DPO self-assessment.

Complete our free online security self-assessment.

You will need to be clear on where that processing takes place and what data is being processed. Processing data outside of the EU typically requires a Model Contract to be established between the controller and processor.  This contract needs to include the details of the data that is transferred between the EU organisation and the non-EU organisation.

That is a difficult question to answer.  However, if you fail to attempt to comply with GDPR then you are exposed to serious risks. Firstly, the financial risk is significant – up to €20 million or 4% of last year’s turnover, whichever is the greater.  Let’s face it, that’s probably enough to put a majority of organisations out of business. Then there is the reputational risk – a failure to comply will become public knowledge and will have a negative impact on your organisation’s reputation. However, the biggest risk relates to your ability to win more work.  Bids and tenders require you to state your GDPR compliance levels.  You will need hard evidence.

Typically, this is the organisation who ‘owns’ the data being processed (e.g. an organisation is generally the controller of their employee personal data). Art.4(7) “Controller” means the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of personal data; where the purposes and means of processing are determined by EU or Member State laws, the controller (or the criteria for nominating the controller) may be designated by those laws.

The data processor is the person or organisation that does the actual processing of the data. For example, if an organisation outsources their payroll to an accountancy firm, they are the processor of the employees’ data. Art.4(8) “Processor” means a natural or legal person, public authority, agency or any other body which processes personal data on behalf of the controller. The concept of a “processor” does not change under the GDPR. Any entity that is a processor under the Directive likely continues to be a processor under the GDPR.

GDPR has strict definitions for the legal basis for processing personal data. You will need to review every processing activity that you do and assess it against the stated legal basis in each case.  If you are in anyway unsure, you should get in touch with us or seek legal advice. The ICO publishes guidance on this.

The key principles are important because they represent the foundations of what it means to be compliant. These are documented in Article 5 of the regulation.  In summary, personal data should be:

  • Processed lawfully in a transparent manner
  • Collected for specified, explicit and legitimate purposes
  • Adequate, relevant and limited to what is necessary
  • Accurate and, where necessary, kept up to date
  • Retained only for as long as necessary
  • Processed in an appropriate manner to maintain security

‘Pseudonymisation’ means the processing of personal data in such a manner that the personal data can no longer be attributed to a specific data subject without the use of additional information (provided that such additional information is kept separately and is subject to technical and organisational measures to ensure that the personal data are not attributed to an identified or identifiable natural person). ‘Encryption’ means making data inaccessible without the specific decryption key. ‘Anonymisation’ means making it impossible to identify a specific data subject.

Data subjects are the individuals that are having their personal data processed by organisations.  In GDPR terms, they have to be EU citizens. Under GDPR, they have extended rights and can exercise these rights by submitting a data subject request to an organisation. The organisation then has one month to comply with this request. Guidance on the rights of data subjects is available here.

You will need to have an incident management plan – your Data Protection Officer (DPO) should establish this. Validating whether or not a breach of personal data has actually taken place will be vital during the identification of the incident.  If one has, the DPO will then work with the data controller to review the severity of the breach and assess if the ICO needs to be informed. Guidance on this subject is available here.

GDPR requires the data controller to notify a data subject of their rights in associated with the request they have submitted. A privacy notice outlines to the data subject their rights and how the data controller is going to adhere to those rights with regards to the request submitted. Ideally, data controllers should establish an appropriate privacy notice for the most common data subject requests. Guidance on this subject is available here.

This is a very simple question with a very complex answer. All data controllers are required to have a personal data retention policy.  This policy should outline the retention periods for all personal data being processed. You cannot keep data indefinitely unless there are legal reasons to do so. When you complete your processing inventory, document the required retention against each activity and classification of data.