KNOW YOUR RIGHTS
The General Data Protection Regulation (GDPR) (Regulation (EU) 2016/679) is a regulation by which the European Parliament, the European Council and the European Commission intend to strengthen and unify data protection for individuals within the European Union (EU). It also addresses export of personal data outside the EU. The primary objectives of the GDPR are to give citizens back the control of their personal data and to simplify the regulatory environment for international business by unifying the regulation within the EU. When the GDPR takes effect it will replace the data protection directive (officially Directive 95/46/EC) from 1995. Perhaps confusingly for some, there is a new directive as well as a new regulation; it will apply to police procedures, which will continue to vary from one Member State to the other.
The regulation was adopted on 27 April 2016. It enters into application 25 May 2018 after a two-year transition period and, unlike a directive, it does not require any enabling legislation to be passed by national governments.Summary
“The proposed new EU data protection regime extends the scope of the EU data protection law to all foreign companies processing data of EU residents. It provides for a harmonization of the data protection regulations throughout the EU, thereby making it easier for non-European companies to comply with these regulations; however, this comes at the cost of a strict data protection compliance regime with severe penalties of up to 4% of worldwide turnover.” The Parliament’s version contains increased fines up to 5%. After trilogue negotiations between the European Parliament, the European Commission and the Council of Ministers, there is general consensus on the wording of the GDPR and also the financial penalties for non-compliance.
The proposal for the European Data Protection Regulation contains the following key changes:
The regulation applies if the data controller or processor (organization) or the data subject (person) is based in the EU. Furthermore (and unlike the current Directive) the Regulation also applies to organizations based outside the European Union if they process personal data of EU residents. The regulation does not apply to the processing of personal data for national security activities or law enforcement (“competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties”). According to the European Commission “personal data is any information relating to an individual, whether it relates to his or her private, professional or public life. It can be anything from a name, a photo, an email address, bank details, posts on social networking websites, medical information, or a computer’s IP address.”
Single set of rules and one-stop shop
A single set of rules will apply to all EU member states. Each member state will establish an independent Supervisory Authority (SA) to hear and investigate complaints, sanction administrative offences, etc. SAs in each member state will cooperate with other SAs, providing mutual assistance and organizing joint operations. Where a business has multiple establishments in the EU, it will have a single SA as its “lead authority”, based on the location of its “main establishment” (i.e., the place where the main processing activities take place). The lead authority will act as a “one-stop shop” to supervise all the processing activities of that business throughout the EU (Articles 46 – 55 of the GDPR). A European Data Protection Board (EDPB) will coordinate the SAs. EDPB will replace Article 29 Working Party.
There are exceptions for data processed in an employment context and data processed for the purposes of the national security, that still might be subject to individual country regulations (Articles 2(2) (a) and 82 of the GDPR).
Responsibility and accountability
The notice requirements remain and are expanded. They must include the retention time for personal data and contact information for data controller and data protection officer has to be provided.
Automated individual decision-making, including profiling (Article 22) is made contestable. Citizens now have the right to question and fight decisions that affect them that have been made on a purely algorithmic basis.
Privacy by Design and by Default (Article 25) require that data protection is designed into the development of business processes for products and services.
Privacy settings must be set at a high level by default.
Data Protection Impact Assessments (Article 35) have to be conducted when specific risks occur to the rights and freedoms of data subjects. Risk assessment and mitigation is required and a prior approval of the Data Protection Authorities (DPA) for high risks. Data Protection Officers (Articles 37–39) are to ensure compliance within organizations.
They have to be appointed:
- for all public authorities, except for courts acting in their judicial capacity
- if the core activities of the controller or the processor consist of processing operations which, by virtue of their nature, their scope and/or their purposes, require regular and systematic monitoring of data subjects on a large scale
- processing on a large scale of special categories of data pursuant to Article 9 and personal data relating to criminal convictions and offences referred to in Article 10
Valid consent must be explicit for data collected and purposes data used (Article 7; defined in Article 4). Consent for children must be given by child’s parent or custodian, and verifiable (Article 8). Data controllers must be able to prove “consent” (opt-in) and consent may be withdrawn.
Data Protection Officer
Where the processing is carried out by a public authority, except for courts or independent judicial authorities when acting in their judicial capacity, or where, in the private sector, processing is carried out by a controller whose core activities consist of processing operations that require regular and systematic monitoring of the data subjects, a person with expert knowledge of data protection law and practices should assist the controller or processor to monitor internal compliance with this Regulation. The DPO is similar but not the same as a Compliance Officer as they are also expected to be proficient at managing IT processes, data security (including dealing with cyber-attacks) and other critical business continuity issues around the holding and processing of personal and sensitive data. The skill set required stretches beyond understanding legal compliance with data protection laws and regulations.
Monitoring of DPOs will be the responsibility of the Regulator rather than the Board of Directors of the organization that employs the DPO. The appointment of a DPO within a large organization will be a challenge for the Board as well as for the individual concerned. There are a myriad of governance and human factor issues that organizations and companies will need to address given the scope and nature of the appointment. In addition, the post holder will need to create their own support team and will also be responsible for their own continuing professional development as they need to be independent of the organization that employs them, effectively as a “mini-regulator”.
More details on the function and the role of Data Protection Officer were given on 13 December 2016 with a guideline document.
Under the GDPR, the Data Controller will be under a legal obligation to notify the Supervisory Authority without undue delay. The reporting of a data breach is not subject to any de minimize standard and must be reported to the Supervisory Authority within 72 hours from the data breach (Article 33). Individuals have to be notified if adverse impact is determined (Article 34).
The following sanctions can be imposed:
- a warning in writing in cases of first and non-intentional non-compliance
- regular periodic data protection audits
- a fine up to 10,000,000 EUR or up to 2% of the annual worldwide turnover of the preceding financial year in case of an enterprise, whichever is greater (Article 83, Paragraph 4
- a fine up to 20,000,000 EUR or up to 4% of the annual worldwide turnover of the preceding financial year in case of an enterprise, whichever is greater (Article 83, Paragraph 5 & 6
Right to erasure
A so-called right to be forgotten was replaced by a more limited right to erasure in the version of the GDPR adopted by the European Parliament in March 2014. Article 17 provides that the data subject has the right to request erasure of personal data related to him on any one of a number of grounds including non-compliance with article 6.1 (lawfulness) that includes a case (f) where the legitimate interests of the controller is overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data (see also Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González).
A person shall be able to transfer their personal data from one electronic processing system to and into another, without being prevented from doing so by the data controller. In addition, the data must be provided by the controller in a structured and commonly used electronic format. The right to data portability is provided by Article 18 of the GDPR. Legal experts see in the final version of this measure a “new right” created that “reaches beyond the scope of data portability between two controllers as stipulated in Article 18”.
The proposal for GDPR was released on 25 January 2012 and the EU Council aimed for formal adoption in early 2016. The schedule is:
- 21 October 2013: European Parliament Committee on Civil Liberties, Justice and Home Affairs (LIBE) had its orientation vote.
- 15 December 2015: Negotiations between European Parliament, Council and Commission (Trilogue) have resulted in a joint proposal.
- 17 December 2015: European Parliament’s LIBE committee voted positively on the outcome of the negotiations between the three parties.
- 8 April 2016: Adoption by the Council of the European Union.
- The regulation entered into force 20 days after its publication in the EU Official Journal on May 4th, 2016. Its provisions will be directly applicable in all member states two years after this date.
- It shall apply from 25 May 2018.
Discussion and challenges
The proposal for the new regulation gave rise to many discussions and controversy. Thousands of amendments were proposed. The single set of rules and the removal of administrative requirements were supposed to save money. But critics pointed to these issues:
- The requirement to have a Data Protection Officer (DPO) is new for many EU countries and criticized by some for its administrative burden.
- The GDPR was developed with a focus on social networks and cloud providers, but did not consider requirements for handling employee data sufficiently.
- Data portability is not seen as a key aspect for data protection, but more a functional requirement for social networks and cloud providers.
Language and staffing challenges for the Data Protection Authorities (DPA):
- Non-European companies might prefer the UK/Irish DPA because of the English language. This will require extensive resources in those countries.
- EU citizens no longer have a single DPA to contact for their concerns, but have to deal with the DPA chosen by the company involved. Communication problems due to foreign languages have to be expected.
- The new regulation conflicts with other non-European laws and regulations and practices (e.g. surveillance by governments). Companies in such countries should no longer be considered acceptable for processing EU personal data. See EU-US Privacy Shield.
- The biggest challenge might be the implementation of the GDPR in practice:
- The implementation of the EU GDPR will require comprehensive changes of business practices for companies that had not implemented a comparable level of privacy before the regulation entered into force (especially non-European companies handling EU personal data).
- There is already a lack of privacy experts and knowledge as of today and new requirements might worsen the situation. Therefore education in data protection and privacy will be a critical factor for the success of the GDPR.
- The European Commission and DPAs have to provide sufficient resources and power to enforce the implementation and a unique level of data protection has to be agreed upon by all European DPAs since a different interpretation of the regulation might still lead to different levels of privacy.
- Europe’s international trade policy is not yet in line with the GDPR.