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.
You can find out additional information about GDPR by visiting the dedicated web site. 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.
Under GDPR organizations 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.
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.
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.
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.
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.
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 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.
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:
At this point in time, until there is a formal change in the Data Protection Act 2018 there is no change to the impact of GDPR on organisations within the UK.
We are still classified as EU citizens under the GDPR and therefore our processing of EU citizens data is still effectively covered by the GDPR and our specific legislation e.g. the Data Protection Act 2018.
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 detail 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 and an assessment of the key risks you are exposed to together with a GDPR toolkit and 6 months support (Gold Service Level).
You’ll have to comply with the GDPR regardless of your size, if you process personal data. 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. So marketing data may have this depending upon how it was gathered and if 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, both examples may not have a legal basis 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.
Simple answer is probably ‘yes’. GDPR requires you to establish a processing contract with your Processors of personal data that you control as a the Controller. This is very important in developing a strong GDPR compliant framework as its necessary to ensure that all your third parties are aware of their obligations under GDPR and are actively keeping your data safe.
The key thing to remember here is that this is a key principle of GDPR. You have to ensure that the personal data that you both Control or 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 activities exposes to the security of the data. Therefore, unless you have undertaken your Data Privacy Impact Assessments (DPIA) you cannot demonstrate that you know the data is safe. Obviously you need a good security policy, ideally accreditations (e.g. ISO 27001 or Cyber Essentials) or other security features such as encryption.
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 ourselves. This is a key component in your overall GDPR compliance framework.
You will need to be clear on where that processing takes place and what data is processed. Processing 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 non-EU organisation.
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 20M Euro’s or 4% of last years turnover, whichever is the greater. Lets face it, that’s probably enough to put a majority of organisations out of business. Then there is the reputational risk, failure to comply will leak out and will have a negative impact on your organisations 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 generally is 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 employee’s 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:
‘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 and organisation that they have 1 month to comply with. 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. A key decision point in the identification of the incident is to validate if a breach of personal data has actually taken plan. If so, then the DPO would work with the Data Controller to review the severity of the breach and then 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.
Our view is ‘yes’. Reason being that as a Data Controller you are obliged to be doing everything you can to keep your personal data safe. Failure to train your employees in data protection, specifically with regards to their obligations to keep personal data safe is not demonstrating compliance with this key principle. Train your employees on their obligations, their rights as Data Subjects and document this in their training records.
Well this depends on your status. Ideally, you should tell your third parties:
This depends upon your specific circumstances, however we would expect you to typically have:
We provide the vast majority of these within our GDPR Toolkit. Check out ur GDPR compliance services.
Well this depends upon why you are emailing people? Being pragmatic, GDPR isn’t designed to stop us communicating. Therefore, if we need to email people in our day to day operational activities then this shouldn’t be an issue. GDPR is designed to limit the misuse of our personal data, so if you are doing mass emailing to Data Subjects who haven’t specifically consented to receiving such emails (i.e. newsletters or general sales related communications) then you could have an issue. In this case, that type of processing without consent may be considered a breach of GDPR. However emailing a business contact to discuss a business related subject is not. One thing to remember here, if the Data Subject does not like you emailing them they can ask you to stop. Under these circumstances it would be advisable to agree to that request and cease that activity.
Under GDPR there are categories of data that is classified as sensitive or special data. The processing of this data comes at a higher risk, especially if this is done frequently and for multiple Data Subjects. Processing of this nature can mean that you will be legally required to have an appointed Data Protection Officer (DPO). Information about this type of data can be found here.
In reality quite difficult to accurately state. GDPR comes with a maximum penalty of 20M Euro’s or 4% of last years turnover depending upon which is the greater. How these severe penalties will actually be applied is open to debate. However, organisations run the risk of a very severe financial penalty should the ICO decide to take action. Another major is to the reputation of the organisation. Having personal data breach can be sufficient to effectively ensure that your business quickly becomes unviable due to the loss of confidence that can result. The most likely risk is that you cannot demonstrate compliance sufficiently to bid for new and existing work. You will be asked by prospective new clients to inform them of your compliance status, you will need to provide hard evidence. Without this, winning new business will be much harder going forward.
An organisation can appoint a DPO from their internal team. However it is important to note:
This poses all sorts of problems, especially for small to medium enterprises. The conflict of interest issue ensures that most senior management cannot also be a DPO. The most straightforward and probably cost effective approach is to outsource this role. Data Privacy Services offer the DPO role and a service.
The reality is that the vast majority of personal data is processed on digital systems. Manual (hard copy) processing is still commonplace however most organisations run their payroll, invoicing, HR data and customer data using digital systems. Therefore, IT have to play a major part in demonstrating compliance. E.g.
Not really ‘no’. There will always be some work you will need to do as a the Data Controller. However, we can do the vast majority of the specialist GDPR compliance work including the development of the full compliance framework. Take a look at our GDPR Compliance information and just get in touch.
Simple answer is ‘yes’. Ideally, the senior management of a Data Controller should gain at least a GDPR foundation level certification. Data protection is now such a serious corporate risk that it is imperative that senior management understands this appropriately. We can assist with this, just contact us to find out what training courses we can offer as we have an excellent arrangement with the major training providers with courses available across the UK and online.
Well hopefully you will have prepared. If not, don’t ignore it. Preferably send them the appropriate form to complete. This will outline the details of their request. You will need to respond with a Privacy Notice that outlines what your organisation intends to do about their request. You have 1 month to comply. Depending upon the nature of the request you can either comply completely or possibly not. There may be legal reason that prevent you from doing so, e.g. the right to be forgotten.
By keeping on top of your GDPR compliance framework and undertaking regular reviews. We would advocate a review every six months. We are happy to complete this review for you, get in touch if you need more information. Ideally, you would have a Data Protection Officer (DPO) who would be monitoring and assuring your GDPR compliance on an on-going basis.
The rules have now changed (see below). Fundamentally, if you process large amounts of this type of data then you need to have a Data Protection Officer (DPO) in place. Article 8 states that the following conditions apply for child consent:
Article 45 states that a transfer of personal data can take place providing there is an adequate level of protection. (See details) Sadly, not all non-EU countries have that adequate level of protection in place and therefore under GDPR the transfer of EU citizens personal data could be highly problematic without extra safeguards being in place. The effect of such a decision is that personal data can flow from the EU (and Norway, Liechtenstein and Iceland) to that third country (where adequacy has been established) without any further safeguard being necessary. In others words, transfers to the country in question will be assimilated to intra-EU transmissions of data. The European Commission has so far recognised Andorra, Argentina, Canada (commercial organisations), Faroe Islands, Guernsey, Israel, Isle of Man, Jersey, New Zealand, Switzerland, Uruguay and the US (limited to the Privacy Shield framework) as providing adequate protection. Adequacy talks are ongoing with Japan and South Korea. Countries outside of this list at this point do not have adequate data protection is place. Review this EU Data Transfer Risk Map
Yes it can. However choosing the right suite of solutions is important in order to match the solution to the requirement. We would advocate that you invest in a privacy management solution, we are authorised resellers for such solutions (contact us for more information). We would also suggest that you invest in a processing mapping tool of some kind, again we can assist here. Most medium to larger organisations will need a way of auditing personal data that exists across their multiple repositories. This can be quite a challenge and software can make this significantly easier to do quickly and accurately (e.g. based upon a Data Subject request). Managing and auditing personal data compliance is a real challenge that software can assist with and reduce the burden making you more demonstrably compliant.
This is a simple answer, start working on assessing your current readiness. If you don’t know your current status you cannot understand what the gaps are and how to address them. The challenge here is that you need to understand your desired ‘target state’ for compliance. We call this the GDPR compliance framework. Our readiness assessment will propose what this should be and advise you how to achieve it. Review our GDPR compliance services.
CCTV images are covered under GDPR, they are personal identifiable information about a Data Subject. Therefore you will need a CCTV policy that is transparent about the use of the images and how long the data is retained for. You should inform your Data Subjects that CCTV is in use and make them fully aware of the CCTV policy that is in place.
Our advice is to limit this to what is necessary. Do not capture too much of it. The rationale behind this is that had copy data presents it’s on unique risks to data privacy. It’s fairly easy to lose, probably easier to steal and extremely difficult if not impossible to recover in the event of a disaster (e.g. a fire in the office). The reality is we keep too much of this type of personal data, we duplicate it by printing out copies of data we are storing in digital format. We take scans of documents and print them out and store them in personnel files. Much of this type of data is retained too long (i.e. gathering dust in an archive or filing cabinet that no one ever goes into), left insecure and subject to inaccuracy due to the fact that it never gets updated. Keep hard copy processing to minimum.
Probably yes, less likelihood that the data will be lost, probably has better security implemented in terms of access etc. However, be careful where the data resides. You may find yourself storing (therefore processing) data outside of the EU where you didn’t expect that to be the case. Many document sharing solutions and CRM solutions are storing your documents in US based data centres. This processing is subject to restrictions under GDPR based upon the adequacy of data sharing out side of the EU.
Not answered your GDPR related question? Get in touch for more information.