The General Data Protection Regulation (GDPR) will come into force on the 25th May 2018, replacing the existing data protection framework under the EU Data Protection Directive.
As a regulation, it will not generally require transposition into Irish law (regulations have ‘direct effect’), so organisations involved in data processing of any sort need to be aware the regulation addresses them directly in terms of the obligations it imposes. The GDPR emphasises transparency, security and accountability by data protection controllers and processors, while at the same time standardising and strengthening the right of European citizens to data privacy.
Raising awareness among organisations and the public aware of the new law will be a combined effort of the Data Protection Commissioner (DPC), the Government, practitioners, and industry and professional representative bodies. The DPC will be proactively undertaking a wide range of initiatives to build awareness of the GDPR, in particular providing guidance to help organisations prepare for the new law which comes into force on 25 May 2018.
The DPC is also an active participant in the Article 29 Working Party (WP29) comprising representatives from each EU member state’s Data Protection authority. The WP29 has a central role in providing further explanatory and practical guidance on key provisions of the GDPR.
The DPC has launched a GDPR-specific website www.GDPRandYou.ie with guidance to help individuals and organisations become more aware of their enhanced rights and responsibilities under the General Data Protection Regulation.
The DPC has also prepared an introductory document for organisations to help them as they transition to GDPR: “The GDPR and You”. This document lists 12 steps which organisations should take in order to be GDPR ready by 25 May 2018. It should be noted that the guide is not an exhaustive list and organisations should ensure that their preparations take account of all actions required to bring them into compliance with the new law.
For guidance on whether your organisation needs to appoint a Data Protection Officer, and how to ensure that your DPO is adequately resourced for the role, see the DPC’s Guidance on appropriate Qualifications for Data Protection Officers (GDPR).
GDPR for individuals
The new law will give individuals greater control over their data by setting out additional and more clearly defined rights for individuals whose personal data is collected and processed by organisations. The GDPR also imposes corresponding and greatly increased obligations on organisations that collect this data.
Personal data is any information that can identify an individual person. This includes a name, an ID number, location data (for example, location data collected by a mobile phone) or a postal address, online browsing history, images or anything relating to the physical, physiological, genetic, mental, economic, cultural or social identity of a person.
The GDPR is based on the core principles of data protection which exist under the current law. These principles require organisations and businesses to:
• collect no more data than is necessary from an individual for the purpose for which it will be used;
• obtain personal data fairly from the individual by giving them notice of the collection and its specific purpose;
• retain the data for no longer than is necessary for that specified purpose;
• to keep data safe and secure; and
• provide an individual with a copy of his or her personal data if they request it.
Under the GDPR individuals have the significantly strengthened rights to:
• obtain details about how their data is processed by an organisation or business;
• obtain copies of personal data that an organisation holds on them;
• have incorrect or incomplete data corrected;
• have their data erased by an organisation, where, for example, the organisation has no legitimate reason for retaining the data;
• obtain their data from an organisation and to have that data transmitted to another organisation (Data Portability);
• object to the processing of their data by an organisation in certain circumstances;
• not to be subject to (with some exceptions) automated decision making, including profiling.
Organisations and businesses collecting and processing personal data will be required to meet a very high standard in how they collect, use and protect data. Very importantly, organisations must always be fully transparent to individuals about how they are using and safeguarding personal data, including by providing this information in easily accessible, concise, easy to understand and clear language.
For organisations and businesses who breach the law, the Data Protection Commissioner is being given more robust powers to impose very substantial sanctions including the power to impose fines. Under the new law, the DPC will be able to fine organisations up to €20 million (or 4% of total global turnover) for the most serious infringements.
The GDPR will also permit individuals to seek compensation through the courts for breaches of their data privacy rights, including in circumstances where no material damage or financial loss has been suffered.
GDPR for organisations
GDPR very significantly increases the obligations and responsibilities for organisations and businesses in how they collect, use and protect personal data. At the centre of the new law is the requirement for organisations and businesses to be fully transparent about how they are using and safeguarding personal data, and to be able to demonstrate accountability for their data processing activities.
There are 12 GDPR Steps that organizations can follow to build awareness and help them prepare for GDPR compliance.
1. Becoming aware
It is imperative that key personnel in your organisation are aware that the law is changing to the GDPR, and start to factor this into their future planning. They should start to identify areas that could cause compliance problems under the GDPR. Initially, data controllers should review and enhance their organisation’s risk management processes, as implementing the GDPR could have significant implications for resources; especially for more complex organisations. Any delay in preparations may leave your organisation susceptible to compliance issues following the GDPR’s introduction.
2. Becoming accountable
Make an inventory of all personal data you hold and examine it under the following headings:
• Why are you holding it?
• How did you obtain it?
• Why was it originally gathered?
• How long will you retain it?
• How secure is it, both in terms of encryption and accessibility?
• Do you ever share it with third parties and on what basis might you do so?
This is the first step towards compliance with the GDPR’s accountability principle, which requires organisations to demonstrate (and, in most cases, document) the ways in which they comply with data protection principles when transacting business. The inventory will also enable organisations to amend incorrect data or track third-party disclosures in the future, which is something that they may be required to do.
3. Communicating with staff and service users
Review all current data privacy notices alerting individuals to the collection of their data. Identify any gaps that exist between the level of data collection and processing your organisation engages in, and how aware you have made your customers, staff and services users of this fact. If gaps exist, set about redressing them using the criteria laid out in ‘2: Becoming Accountable’ as your guide.
Before gathering any personal data, current legislation requires that you notify your customers of your identity, your reasons for gathering the data, the use(s) it will be put to, who it will be disclosed to, and if it’s going to be transferred outside the EU.
Under the GDPR, additional information must be communicated to individuals in advance of processing, such as the legal basis for processing the data, retention periods, the right of complaint where customers are unhappy with your implementation of any of these criteria, whether their data will be subject to automated decision making and their individual rights under the GDPR. The GDPR also requires that the information be provided in concise, easy to understand and clear language.
4. Personal privacy rights
You should review 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.
Rights for individuals under the GDPR include:
• subject access
• to have inaccuracies corrected
• to have information erased
• to object to direct marketing
• to restrict the processing of their information, including automated decision-making
• data portability
On the whole, the rights individuals will enjoy under the GDPR are the same as those under the Acts, but with some significant enhancements. Organisations who already apply these principles will find the transition to the GDPR less difficult.
Review your current procedures. How would your organisation react if it received a request from a data subject wishing to exercise their rights under the GDPR?
• How long to locate (and correct or delete) the data from all locations where it is stored?
• Who will make the decisions about deletion?
• Can your systems respond to the data portability provision of the GDPR, if applicable where you have to provide the data electronically and in a commonly used format?
5. How will access requests change
You should review and update your procedures and plan how you will handle requests within the new timescales. (There should be no undue delay in processing an Access Request and, at the latest, they must be concluded within one month).
The rules for dealing with subject access requests will change under the GDPR. In most cases, you will not be able to charge for processing an access request, unless you can demonstrate that the cost will be excessive. The timescale for processing an access request will also shorten, dropping significantly from the current 40 day period. Organisations will have some grounds for refusing to grant an access request. Where a request is deemed manifestly unfounded or excessive, it can be refused. However, organisations will need to have clear refusal policies and procedures in place, and demonstrate why the request meets these criteria.
You will also need to provide some additional information to people making requests, such as your data retention periods and the right to have inaccurate data corrected. If your organisation handles a large number of access requests, the impact of the changes could be considerable. The logistical implications of having to deal with requests in a shorter timeframe and provide additional information will need to be factored into future planning for organisations. It could ultimately save your organisation a great deal of administrative cost if you can develop systems that allow people to access their information easily online.
6. What we mean when we talk about a legal basis
You should look at the various types of data processing you carry out, identify your legal basis for carrying it out and document it. This is particularly important where consent is relied upon as the sole legal basis for processing data. Under the GDPR, individuals will have a stronger right to have their data deleted where customer consent is the only justification for processing. You will have to explain your legal basis for processing personal data in your privacy notice and when you answer a subject access request.
For government departments and agencies, there has been a significant reduction in the number of legal bases they may rely on when processing data. It will no longer be possible to cite legitimate interests. Instead, there will be a general necessity to have specific legislative provisions underpinning one or more of the methods organisations use to process data. All organisations need to carefully consider how much personal data they gather, and why. If any categories can be discontinued, do so. For the data that remains, consider whether it needs to be kept in its raw format, and how quickly you can begin the process of anonymisation and pseudonymisation.
7. Using customer consent as a grounds to process personal data
If you do use customer consent when you record personal data, you should review how you seek, obtain and record that consent, and whether you need to make any changes. Consent must be ‘freely given, specific, informed and unambiguous’. Essentially, your customer cannot be forced into consent, or be unaware that they are consenting to processing of their personal data. They must know exactly what they are consenting to, and there can be no doubt that they are consenting. Obtaining consent requires a positive indication of agreement – it cannot be inferred from silence, pre-ticked boxes or inactivity.
If consent is the legal basis relied upon to process personal data, you must make sure it will meet the standards required by the GDPR. If it does not, then you should amend your consent mechanisms or find an alternative legal basis. Note that consent has to be verifiable, that individuals must be informed in advance of their right to withdraw consent and that individuals generally have stronger rights where you rely on consent to process their data. The GDPR is clear that controllers must be able to demonstrate that consent was given. You should therefore review the systems you have for recording consent to ensure you have an effective audit trail.
8. Processing children’s data
If the work of your organisation involves the processing of data from underage subjects, you must ensure that you have adequate systems in place to verify individual ages and gather consent from guardians.
The GDPR introduces special protections for children’s data, particularly in the context of social media and commercial internet services. The state will define the age up to which an organisation must obtain consent from a guardian before processing a child’s data. It should be noted that consent needs to be verifiable, and therefore communicated to your underage customers in language they can understand.
9. Data Privacy Impact Statements (DPIA) Data protection by default
A DPIA is the process of systematically considering the potential impact that a project or initiative might have on the privacy of individuals. It will allow organisations to identify potential privacy issues before they arise, and come up with a way to mitigate them. A DPIA can involve discussions with relevant parties/stakeholders. Ultimately such an assessment may prove invaluable in determining the viability of future projects and initiatives. The GDPR introduces mandatory DPIAs for those oganisations involved in high-risk processing; for example where a new technology is being deployed, where a profiling operation is likely to significantly affect individuals, or where there is large scale monitoring of a publicly accessible area.
Where the DPIA indicates that the risks identified in relation to the processing of personal data cannot be fully mitigated, data controllers will be required to consult the DPC before engaging in the process. Organisations should now start to assess whether future projects will require a DPIA and, if the project calls for a DPIA, consider:
• Who will do it?
• Who else needs to be involved?
• Will the process be run centrally or locally?
It has always been good practice to adopt privacy by design as a default approach; privacy by design and the minimisation of data have always been implicit requirements of the data protection principles. However, the GDPR enshrines both the principle of ‘privacy by design’ and the principle of ‘privacy by default’ in law. This means that service settings must be automatically privacy friendly, and requires that the development of services and products takes account of privacy considerations from the outset.
10. Reporting data breaches
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 DPC when they incur a personal data breach. However, the GDPR will bring in mandatory breach notifications, which will be new to many organisations. All breaches must be reported to the DPC, typically within 72 hours, unless the data was anonymised or encrypted. In practice this will mean that most data breaches must be reported to the DPC. Breaches that are likely to bring harm to an individual – such as identity theft or breach of confidentiality – must also be reported to the individuals concerned. Now is the time to assess the types of data you hold and document which ones which fall within the notification requirement in the event of a breach. Larger organisations will need to develop policies and procedures for managing data breaches, both at central or local level.
It is worth noting that a failure to report a breach when required to do so could result in a fine, as well as a fine for the breach itself.
11. Data Protection Officers (DPO)
The GDPR will require some organisations to designate a Data Protection Officer (DPO). Organisations requiring DPOs include public authorities, organisations whose activities involve the regular and systematic monitoring of data subjects on a large scale, or organisations who process what is currently known as sensitive personal data on a large scale.
The important thing is to make sure that someone in your organisation, or an external data protection advisor, takes responsibility for your data protection compliance and has the knowledge, support and authority to do so effectively.
Therefore you should consider now whether you will be required to designate a DPO and, if so, to assess whether your current approach to data protection compliance will meet the GDPR’s requirements.
12. Cross border processing and one stop shop
The GDPR includes the one stop shop (OSS) mechanism, which will be in place for data controllers and data processors that are engaged in cross-border processing of personal data.
The OSS will allow your organisation to deal with a single lead supervisory authority (LSA) for most of your processing activities. Your LSA will be the supervisory authority of the country in which you have your main establishment.
For the OSS to apply to your organisation, you must be engaged in cross-border processing and be established in the European Union.
The way you will identify your main establishment depends on whether you are a data controller or a data processor, but in general it will be helpful for you to map out where your organisation makes its decisions about data processing.