On 25 May 2018, the 2016 EU General Data Protection Regulation (GPDR) will be implemented in the UK.
The GPDR defines personal data as
‘any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.”
Like the Data Protection Act (DPA), the GDPR applies to ‘personal data’. However, the GDPR’s definition is more detailed and makes it clear that information such as an online identifier – e.g. an IP address – can be personal data. The more expansive definition provides for a wide range of personal identifiers to constitute personal data, reflecting changes in technology and the way organisations collect information about people.
For most organisations, keeping HR records, customer lists, or contact details etc, the change to the definition should make little practical difference. You can assume that if you hold information that falls within the scope of the DPA, it will also fall within the scope of the GDPR.
The GDPR applies to both automated personal data and to manual filing systems where personal data are accessible according to specific criteria. This is wider than the DPA’s definition and could include chronologically ordered sets of manual records containing personal data.
For organisations who employ more than 250 employees, there's a need to have documentation of why people's information is being collected and processed, descriptions of the information that's held, how long it's being kept for and descriptions of technical security measures in place.
Part 1 Main changes from DPA
The GDPR introduces a number of key changes for organisations. Those changes we think that are most applicable to SMEs are set out below:
The definition of personal data is broader, bringing more data into the regulated perimeter
Data privacy encompasses other factors that could be used to identify an individual, such as their genetic, mental, economic, cultural or social identity. Companies should take measures to reduce the amount of personally identifiable information they store, and ensure that they do not store any information for longer than necessary.
The rules for obtaining valid consent have been changed
The consent document should be laid out in simple terms. Silence or inactivity does not constitute consent; clear and affirmative consent to the processing of private data must be provided.
The appointment of a data protection officer (DPO) will be mandatory for certain companies
Article 35 of the GDPR states that data protection officers must be appointed for all public authorities. In addition, a DPO will be required where the core activities of the controller or the processor involve “regular and systematic monitoring of data subjects on a large scale” or where the entity conducts large-scale processing of “special categories of personal data”.
The GDPR does not specify credentials necessary for data protection officers, but does require that they have “expert knowledge of data protection law and practices.”
A controller is an entity that decides the purpose and manner that personal data is used or will be used. A processor is the person or group that processes the data on behalf of the controller. Processing is obtaining, handling, adapting or holding personal data.
Firms whose core business activities are not data processing are exempt from this obligation.
Mandatory Data protection impact assessments have been introduced
A risk-based approach must be adopted before undertaking higher-risk data processing activities. Data controllers will be required to conduct privacy impact assessments where privacy breach risks are high to analyse and minimise the risks to their data subjects.
There are new requirements for data breach notifications
Data controllers will be required to report data breaches to their data protection authority unless it is unlikely to represent a risk to the rights and freedoms of the data subjects in question. The notice must be made within 72 hours of data controllers becoming aware of it, unless there are exceptional circumstances, which will have to be justified.
Where the risk to individuals is high, then the data subjects must be notified, although a specific timescale is not specified by the Regulation.
Regular supply chain reviews and audits will be required to ensure they are fit for purpose under the new security regime.
Data subjects have the right to be forgotten
Data subjects have the “right to be forgotten”. The Regulation provides clear guidelines about the circumstances under which the right can be exercised.
Data processors share responsibility for protecting personal data
Data processors will have direct legal obligations and responsibilities, which means that processors can be held liable for data breaches. Contractual arrangements will need to be updated, and stipulating responsibilities and liabilities between the controller and processor will be an imperative requirement in future agreements. Parties will need to document their data responsibilities even more clearly, and the increased risk levels may impact service costs.
There are new requirements for data portability
Data portability will allow a user to request a copy of personal data in a format usable by them and electronically transmissible to another processing system.
Processes must be built on the principle of privacy by design
The GDPR contains requirements that systems and processes must consider compliance with the principles of data protection. The essence of privacy by design is that privacy in a service or product is taken into account not only at the point of delivery, but from the inception of the product concept.
There is also a requirement that controllers should only collect data necessary to fulfil specific purposes, discarding it when it is no longer required, to protect data subject rights.
If your business is not in the EU, you will still have to comply with the Regulations
Non-EU organisations that do business in the EU with EU data subjects' personal data should prepare to comply with the Regulation. Those providing products or services to EU customers or processing their data may have to face the long arm of the law if an incident is reported.
Part 2 What needs to be done before 25 May 2018
Some parts of the GDPR will have more of an impact on some organisations than on others (for example, the provisions relating to profiling or children’s data), so it is useful to map out which parts of the GDPR will have the greatest impact on your business model so you can give those areas priority in your implementation planning process.
You should make sure that decision makers and key people in your organisation are aware that the law is changing to the GDPR. They need to appreciate the impact this is likely to have and identify areas that could cause compliance problems under the GDPR.
It would be useful to start by looking at your organisation’s risk register, if you have one. Implementing the GDPR could have significant resource implications, especially for larger and more complex organisations. You may find compliance difficult if you leave your preparations until the last minute.
Information you hold
You should document what personal data you hold, where it came from and who you share it with. You may need to organise an information audit across the organisation or within particular business areas.
The GDPR requires you to maintain records of your processing activities. It updates rights for a networked world. For example, if you have inaccurate personal data and have shared this with another organisation, you will have to tell the other organisation about the inaccuracy so it can correct its own records. You won’t be able to do this unless you know what personal data you hold, where it came from and who you share it with. You should document this.
Doing this will also help you to comply with the GDPR’s accountability principle, which requires organisations to be able to show how they comply with the data protection principles, for example by having effective policies and procedures in place.
Communicating privacy information
You should review your current privacy notices and put a plan in place for making any necessary changes in time for GDPR implementation.
When you collect personal data you currently should give people certain information, such as your identity and how you intend to use their information. This is usually done through a privacy notice.
Under the GDPR there are some additional things you will have to tell people. For example, you will need to explain your lawful basis for processing the data, your data retention periods and that individuals have a right to complain to the Information Commisioner’s Office (ICO) if they think there is a problem with the way you are handling their data. The GDPR requires the information to be provided in concise, easy to understand and clear language.
The ICO’s Privacy notices code of practice reflects the new requirements of the GDPR.
You should check your procedures to ensure they cover all the rights individuals have, including how you would delete personal data or provide data electronically and in a commonly used format. The GDPR includes the following rights for individuals:
- the right to be informed;
- the right of access;
- the right to rectification;
- the right to erasure;
- the right to restrict processing;
- the right to data portability;
- the right to object; and
- the right not to be subject to automated decision-making including profiling.
On the whole, the rights individuals will enjoy under the GDPR are the same as those under the DPA but with some significant enhancements.
If you are geared up to give individuals their rights now, then the transition to the GDPR should be relatively easy.
This is a good time to check your procedures and to work out how you would react if someone asks to have their personal data deleted, for example, would your systems help you to locate and delete the data? Who will make the decisions about deletion?
The right to data portability is new. It only applies:
- to personal data an individual has provided to a controller;
- where the processing is based on the individual’s consent or for the performance of a contract; and
- when processing is carried out by automated means.
You should consider whether you need to revise your procedures and make any changes. You will need to provide the personal data in a structured commonly used and machine-readable form and provide the information free of charge.
Subject access requests
You should update your procedures and plan how you will handle requests to take account of the new rules:
- In most cases you will not be able to charge for complying with a request.
- You will have a month to comply, rather than the current 40 days.
- You can refuse or charge for requests that are manifestly unfounded or excessive.
- If you refuse a request, you must tell the individual why and that they have the right to complain to the supervisory authority and to a judicial remedy. You must do this without undue delay and at the latest, within one month.
If your organisation handles a large number of access requests, consider the logistical implications of having to deal with requests more quickly. You could consider whether it is feasible or desirable to develop systems that allow individuals to access their information easily online.
Lawful basis for processing personal data
You should identify the lawful basis for your processing activity in the GDPR, document it and update your privacy notice to explain it.
Many organisations will not have thought about their lawful basis for processing personal data. Under the current law this does not have many practical implications. However, this will be different under the GDPR because some individuals’ rights will be modified depending on your lawful basis for processing their personal data. The most obvious example is that people will have a stronger right to have their data deleted where you use consent as your lawful basis for processing.
You will also have to explain your lawful basis for processing personal data in your privacy notice and when you answer a subject access request. The lawful bases in the GDPR are broadly the same as the conditions for processing in the DPA. It should be possible to review the types of processing activities you carry out and to identify your lawful basis for doing so.
You should document your lawful bases in order help you comply with the GDPR’s ‘accountability’ requirements.
You should review how you seek, record and manage consent and whether you need to make any changes.
Refresh existing consents now if they don’t meet the GDPR standard. Consent must be freely given, specific, informed and unambiguous.
There must be a positive opt-in – consent cannot be inferred from silence, pre-ticked boxes or inactivity. It must also be separate from other terms and conditions, and you will need to have simple ways for people to withdraw consent.
Public authorities and employers will need to take particular care. Consent has to be verifiable and individuals generally have more rights where you rely on consent to process their data. You are not required to automatically ‘repaper’ or refresh all existing DPA consents in preparation for the GDPR. But if you rely on individuals’ consent to process their data, make sure it will meet the GDPR standard on being specific, granular, clear, prominent, opt-in, properly documented and easily withdrawn.
If not, alter your consent mechanisms and seek fresh GDPR-compliant consent, or find an alternative to consent.
You should start thinking now about whether you need to put systems in place to verify individuals’ ages and to obtain parental or guardian consent for any data processing activity.
For the first time, the GDPR will bring in special protection for children’s personal data, particularly in the context of commercial internet services such as social networking.
If your organisation offers online services (‘information society services’) to children and relies on consent to collect information about them, then you may need a parent or guardian’s consent in order to process their personal data lawfully.
The GDPR sets the age when a child can give their own consent to this processing at 16 (although this may be lowered to a minimum of 13 in the UK). If a child is younger then you will need to get consent from a person holding ‘parental responsibility’. This could have significant implications if your organisation offers online services to children and collects their personal data.
Remember that consent has to be verifiable and that when collecting children’s data your privacy notice must be written in language that children will understand.
You should make sure you have the right procedures in place to detect, report and investigate a personal data breach.
Some organisations are already required to notify the ICO (and possibly some other bodies) when they suffer a personal data breach. The GDPR introduces a duty on all organisations to report certain types of data breach to the ICO, and in some cases, to individuals.
You only have to notify the ICO of a breach where it is likely to result in a risk to the rights and freedoms of individuals – if, for example, it could result in discrimination, damage to reputation, financial loss, loss of confidentiality or any other significant economic or social disadvantage.
Where a breach is likely to result in a high risk to the rights and freedoms of individuals, you will also have to notify those concerned directly in most cases.
You should put procedures in place to effectively detect, report and investigate a personal data breach. You may wish to assess the types of personal data you hold and document where you would be required to notify the ICO or affected individuals if a breach occurred.
Larger organisations will need to develop policies and procedures for managing data breaches. Failure to report a breach when required to do so could result in a fine, as well as a fine for the breach itself.
Data Protection by Design and Data Protection Impact Assessments
It has always been good practice to adopt a privacy by design approach and to carry out a Privacy Impact Assessment (PIA) as part of this. However, the GDPR makes privacy by design an express legal requirement, under the term ‘data protection by design and by default’.
It also makes PIAs – referred to as ‘Data Protection Impact Assessments’ or DPIAs – mandatory in certain circumstances. A DPIA is required in situations where data processing is likely to result in high risk to individuals, for example:
- where a new technology is being deployed;
- where a profiling operation is likely to significantly affect individuals; or
- where there is processing on a large scale of the special categories of data.
If a DPIA indicates that the data processing is high risk, and you cannot sufficiently address those risks, you will be required to consult the ICO to seek its opinion as to whether the processing operation complies with the GDPR. You should therefore start to assess the situations where it will be necessary to conduct a DPIA.
- Who will do it?
- Who else needs to be involved?
- Will the process be run centrally or locally?
You should also familiarise yourself now with the guidance the ICO has produced on PIAs and work out how to implement them in your organisation. This guidance shows how PIAs can link to other organisational processes such as risk management and project management.
Data Protection Officers
You should designate someone to take responsibility for data protection compliance and assess where this role will sit within your organisation’s structure and governance arrangements. You should consider whether you are required to formally designate a Data Protection Officer (DPO). You must designate a DPO if you are:
- a public authority (except for courts acting in their judicial capacity);
- an organisation that carries out the regular and systematic monitoring of individuals on a large scale; or
- an organisation that carries out the large scale processing of special categories of data, such as health records, or information about criminal convictions.
It is most important that someone in your organisation, or an external data protection advisor, takes proper responsibility for your data protection compliance and has the knowledge, support and authority to carry out their role effectively.
If your organisation operates in more than one EU member state, you should determine your lead data protection supervisory authority and document this.
The lead authority is the supervisory authority in the state where your main establishment is. Your main establishment is the location where your central administration in the EU is or else the location where decisions about the purposes and means of processing are taken and implemented. This is only relevant where you carry out cross-border processing – i.e. you have establishments in more than one EU member state or you have a single establishment in the EU that carries out processing which substantially affects individuals in other EU states.
If this applies to your organisation, you should map out where your organisation makes its most significant decisions about its processing activities. This will help to determine your ‘main establishment’ and therefore your lead supervisory authority.
Guidance on the implementation of the GDPR is being continuously developed or improved by the Information Commisioner’s Office as the implementation date for the GDPR approaches.
Visiting the ICO website is recommended up to the implementation date to ensure that implementation arrangements are both practical and compliant.
If you require more information on this subject, please let us know.