While our first blog outlined what the new EU General Data Protection Regulation (GDPR) is and our second blog explained why it is important to comply, in this third article we are going to look at some of the most common questions that are asked by organisations wrestling with its implications.
The official Regulation document from the European Council is 88 pages long so, rather than making you read through every clause, we have boiled it down to these 10 FAQs. They highlight some of the key points you should be aware of as you try to make your organisation GDPR compliant.
1. Who does the GDPR apply to?
‘Controllers’ and ‘processors’ of data need to abide by the GDPR. Even if controllers and processors are based outside the EU, the GDPR will still apply to them so long as they are dealing with data belonging to EU citizens.
It is the controller’s responsibility to ensure their processor abides by data protection law and processors must themselves abide by rules to maintain records of their processing activities. If processors are involved in a data breach, they are far more liable under GDPR than they were under the UK Data Protection Act.
2. What is the difference between a data processor and a data controller?
A controller is the entity that determines the purposes, conditions and means of the processing of personal data, while the processor is an entity which processes personal data on behalf of the controller.
3. In light of an uncertain ‘Brexit’, I work for a UK-based company and want to know if I should still continue with GDPR planning and preparation?
The short answer is ‘yes’. The UK is due to leave the EU in March 2019, almost a year after the GDPR has come into force.
Post-Brexit, if you sell goods or services to people in other EU countries then you will need to comply with the GDPR, irrespective of whether or not the UK retains the regulation. The UK Government has indicated it will implement an equivalent legal mechanism, and the expectation is that any such legislation will largely follow the GDPR.
So, it looks like Brexit will have minimal, if any, impact on the requirement for UK organisations to be GDPR compliant.
4. Who does the GDPR affect?
The GDPR will apply to businesses and organisations located within the EU but also 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.
5. What constitutes personal data?
Any information related to a natural person or ‘data subject’, which can be used to directly or indirectly identify that person. It can be anything from a name, a photo, an email address, bank details, posts on social networking websites, medical information, or a computer IP address.
6. Do data processors need ‘explicit’ or ‘unambiguous’ data subject consent – and what is the difference?
The conditions for consent have been strengthened, as organisations will no longer be able to utilise long illegible terms and conditions full of legalese. The request for consent must be given “in an intelligible and easily accessible form”, with the purpose for data processing attached to that consent – meaning it must be unambiguous.
It must be as easy to withdraw consent as it is to give it. Explicit consent is required only for processing sensitive personal data (such as data revealing racial or ethnic origin, health data or genetic data) – in which context, nothing short of “opt in” will suffice. However, for non-sensitive data, “unambiguous” consent will suffice.
7. What is the difference between a regulation and a directive?
A regulation is a binding legislative act. It must be applied in its entirety across the EU, while a directive is a legislative act that sets out a goal that all EU countries must achieve. However, it is up to the individual countries to decide how. It is important to note that the GDPR is a regulation, in contrast to the previous legislation, which was a directive.
8. Does my business need to appoint a Data Protection Officer (DPO)?
DPOs must be appointed in the case of: (a) public authorities; (b) organisations that engage in large scale systematic monitoring; or (c) organisations that engage in large scale processing of sensitive personal data. If your organisation does not fall into one of these categories, then you do not need to appoint a DPO. For more detail see Article 37 of the GDPR.
9. How does the GDPR affect policy surrounding data breaches?
Proposed regulations surrounding data breaches primarily relate to the notification policies of companies that have been breached. Data breaches which may pose a high risk to the rights and freedoms of individuals must be notified to the relevant Data Protection Authority (DPA) within 72 hours and to affected individuals “without undue delay”.
10. What are the penalties for non-compliance?
Organisations could be fined up to 4% of annual global turnover or a maximum of €20 million, whichever is the greater, for the most serious infringements. 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 an 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.
Basically if you don’t follow the basic principles for processing data, such as consent; ignore individuals’ rights over their data; or transfer data to another country; you could incur significant financial penalties.
Those are the 10 most frequently asked questions about the GDPR.
Our whitepaper “It’s Time to Get Ready for GDPR” has more information on how to prepare your organisation.
If you are starting out on your journey to GDPR compliance or you have already started but need to validate the approach you are taking, then our GDPR Quick Start Assessment workshop will show you how your organisation could be impacted by the GDPR and make key recommendations to help you become compliant.