Background to the General Data Protection Regulation
The new regulation will create a unified approach to data protection across the EU. Currently, EU member states operate under their own national laws that reflect the 1995 EU Data Protection Directive. Although all members have been working towards the common goals set up by the Directive, however the process of implementing these goals was left up to each country to decide.
The GDPR comes into force on 25th May 2018 and will replace the existing Data Protection Act (DPA). This Regulation applies to data controllers or data processors that keep or process any information about living people, referred to as data subjects. If you are presently required to comply with the DPA then the GDPR will also apply.
The GDPR not only applies to organisations located within the EU but it will also apply to organisations located outside of the EU if they offer goods or services to, or monitor the behaviour of, EU data subjects. It applies to all companies processing and holding the personal data of data subjects residing in the European Union, regardless of the company’s location.
Compared to the current Directive, GDPR will capture many more overseas organisations. US tech companies should particularly take note as the provisions of GDPR have clearly been designed to capture them. Overseas organisations not established within the EU who are nevertheless caught by one or both of offering goods or services or monitoring tests must designate a representative within the EU as required by EU GDPR Article 27.
Personal Data Definition
Personal data is defined as “any information relating to an identified or identifiable natural person.” This includes online identifiers such as IP addresses, location, generic data and cookies, if they are capable of being linked back to the data subject.
If in any doubt, it is prudent to work on the assumption that data is personal data given the extremely wide definition of personal data in the GDPR. The GDPR imposes such a high bar for compliance, with sanctions to match, that often the most effective approach to minimise exposure is not to process personal data in the first place and to securely wipe legacy personal data or render it fully anonymous, reducing the amount of data subject to the requirements of GDPR.
The GDPR aims primarily to give control back to citizens and residents over their personal data and to simplify the regulatory environment for international business by unifying the regulation within the EU. The regulation will 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 Data Directive was established. It is important to note that the GDPR is a regulation, which is a binding legislative act that must be applied in its entirety across the EU. Therefore it is a regulation, which is directly applicable, in full, to all member states. In contrast the previous legislation was a Directive that set out goals that all EU countries must achieve. However, it is up to the individual countries to decide how to implement the process.
Requirements and Responsibility
The new regulations will result in many new conditions; one of the major changes that companies will face is the procedure of obtaining consent. Under these regulations, companies must keep a thorough record of how and when an individual gives consent to store and use their personal data. Consent will therefore mean having an active agreement in place. It can no longer be inferred from, say, a pre-ticked box. Companies that control how and why data is processed will have to show a clear audit trail of consent, including screen grabs or saved consent forms.
Individuals also have the right to withdraw consent at any time, easily and swiftly. When somebody does withdraw consent, their details must be permanently erased, and not just deleted from a mailing list. GDPR gives individuals the ‘right to be forgotten’. In the event of a data breach, GDPR forces companies to inform relevant authorities within 72 hours, giving full details of the breach and proposals for mitigating its effects.
The Main Changes
Although the key principles of data privacy in the GDPR still hold true to the previous Directive, many changes have been proposed to the regulatory policies. These changes and information on the impact they will have on business are summarised as follows:
- Increased Territorial Scope
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'. 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 the 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, 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.
- 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 include the data no longer being relevant to original purposes for processing, or a data subject withdrawing consent. It should also be noted that this right requires controllers to compare the subject’s 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 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 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'. Controllers are required 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 (DPOs)
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.
GDPR in Educational Institutions
Educational Institutions will be held far more accountable for the data they hold. As well as records of what personal data exist within the Institution, the GDPR requires a documented understanding of why information is held, how it is collected, when it will be deleted or anonymised, and who may gain access to it. This information lifecycle approach is essential to achieving international standards on quality and information security, and will assist institutions’ to achieve their goals, together with GDPR.
The GDPR requires Institutions to apply appropriate technical and organisational measures to maintain information security, together with implementing new duties and procedures to report security breaches to the Information Commissioner’ Office (ICO) and to the individuals affected. They also introduce new obligations on the way new information-handling processes and systems are developed. Data protection must be designed in from the start; systems must have default settings that protect privacy.
The daily operation of an Educational Institution requires the processing of various categories of data, mostly relating to students and staff. Data held on mobile devices and in remote offices must be protected in the same way as information that is held centrally. GDPR will require the designation of a Data Protection Officer (DPO). Although this role may already exist in some form, GDPR imposes much stricter qualification and experience requirements, meaning that simply ‘wearing this hat’ alongside their day job is unlikely to be sufficient.
Within the education sector, a large proportion of the processed data will be classified as sensitive, such as information relating to health records, classification of ethnicity or religious indicators. It is important to take adequate steps to ensure that only information which is necessary for specific purposes is collected and only held for as long as it is deemed necessary. Data relating to children also raises the issue of whether suitable consent has been provided for its processing. In most cases, you will rely on the consent of parents or guardians. This consent needs to be clearly documented and the reasons for processing it need to be specific. Under GDPR, consent is going to become much harder to rely on and will therefore require having an active agreement in place.
In summary, organisations should only use identifiable personal data as a last resort where anonymous or fictitious data is not sufficient for the specific purpose.
- IBM Pathways for GDPR readiness Preparing your business for the changing realities of data privacy and protection in the EU
HOW WILL GDPR AFFECT SCHOOLS?
HOW WILL GDPR AFFECT SCHOOLS?
HOW WILL GDPR AFFECT SCHOOLS?
- The EU General Data Protection Regulation (GDPR)
- The GDPR and You – General Data Protection Regulation Prepared for 2018