Data protection Overview of the General Data Protection Regulation (GDPR)


Introduction 3 Principles 5 Key areas to consider 7 Individuals’ rights 11 The right to be informed 12 The right of access 15 The right to rectification 17 The right to erasure 18 The right to restrict processing 20 The right to data portability 21 The right to object 23 Rights related to automated decision making and profiling 25 Accountability and governance 27 Breach notification 35 Transfer of data 37 National derogations 40

Introduction

This overview highlights the key themes of the General Data Protection Regulation (the GDPR) to help organizations understand the new legal framework in the EU. It explains the similarities with the existing EU Data Protection Act 1998 (the DPA), and describes some of the new and different requirements.

The GDPR will apply in the EU from 25 May 2018.

The ICO is committed to assisting businesses and public bodies to prepare to meet the requirements of the GDPR ahead of May 2018 and beyond. We acknowledge that there may still be questions about how the GDPR would apply in the UK on leaving the EU, but this should not distract from the important task of compliance with the GDPR. We are working on guidance to supplement this overview on key issues.

With so many businesses and services operating across borders, international consistency around data protection laws and rights is crucial both to businesses and organizations, and to individuals. The ICO’s role has always involved working closely with regulators in other countries, and that will continue to be the case. Having clear laws with safeguards in place is more important than ever given the growing digital economy, and we will work with government to stay at the centre of these conversations about the long term future of UK data protection law and to provide our advice and counsel where appropriate.

This overview is for those who have day-to-day responsibility for data protection.

Who does the GDPR apply to?

The GDPR applies to ‘controllers’ and ‘processors’. The definitions are broadly the same as under the DPA – ie the controller says how and why personal data is processed and the processor acts on the controller’s behalf. If you are currently subject to the DPA, it is likely that you will also be subject to the GDPR.

If you are a processor, the GDPR places specific legal obligations on you; for example, you are required to maintain records of personal data and processing activities. You will have significantly more legal liability if you are responsible for a breach. These obligations for processors are a new requirement under the GDPR.

However, if you are a controller, you are not relieved of your obligations where a processor is involved – the GDPR places further obligations on you to ensure your contracts with processors comply with the GDPR.

The GDPR applies to processing carried out by organizations operating within the EU. It also applies to organizations outside the EU that offer goods or services to individuals in the EU.

The GDPR does not apply to certain activities including processing covered by the Law Enforcement Directive, processing for national security purposes and processing carried out by individuals purely for personal/household activities.

See Articles 3, 28-31 and Recitals 22-25, 81-82

What information does the GDPR apply to?

Personal data

Like the 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 – eg 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 organizations collect information about people.

For most organizations, 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.

Personal data that has been pseudonymized – eg key-coded – can fall within the scope of the GDPR depending on how difficult it is to attribute the pseudonym to a particular individual.

Sensitive personal data

The GDPR refers to sensitive personal data as “special categories of personal data” (see Article 9). These categories are broadly the same as those in the DPA, but there are some minor changes.

For example, the special categories specifically include genetic and biometric data, where processed to uniquely identify an individual.

Personal data relating to criminal convictions and offences are not included, but similar extra safeguards apply to its processing (see Article 10).

See Articles 2, 4, 9, 10 and Recitals 1, 2, 26, 51

Principles

Under the GDPR, the data protection principles set out the main responsibilities for organizations.

The principles are similar to those in the DPA, with added detail at certain points and a new accountability requirement. The GDPR does not have principles relating to individuals’ rights or overseas transfers of personal data – these are specifically addressed in separate articles (see GDPR Chapter III and Chapter V respectively).

The most significant addition is the accountability principle. The GDPR requires you to show how you comply with the principles – for example by documenting the decisions you take about a processing activity. This is explained in greater detail later in this guide.

Article 5 of the GDPR requires that personal data shall be:

(a) Processed lawfully, fairly and in a transparent manner in relation to individuals;

(b) Collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes shall not be considered to be incompatible with the initial purposes;

(c) Adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed;

(d) Accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay;

(e) kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed; personal data may be stored for longer periods insofar as the personal data will be processed solely for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes subject to implementation of the appropriate technical and organizational measures required by the GDPR in order to safeguard the rights and freedoms of individuals;

(f) Processed in a manner that ensures appropriate security of the personal data, including protection against unauthorized or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organizational measures.

Article 5(2) requires that

“The controller shall be responsible for, and be able to demonstrate, compliance with the principles.”

See Article 5 and Recital 39

Key areas to consider Lawful processing

For processing to be lawful under the GDPR, you need to identify a legal basis before you can process personal data. These are often referred to as the “conditions for processing” under the DPA.

It is important that you determine your legal basis for processing personal data and document this.

This becomes more of an issue under the GDPR because your legal basis for processing has an effect on individuals’ rights. For example, if you rely on someone’s consent to process their data, they will generally have stronger rights, for example to have their data deleted.

The GDPR allows member states to introduce more specific provisions in relation to Articles 6(1)(c) and (e):

“(c) Processing is necessary for compliance with a legal obligation”;

“(e) Processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller.”

These provisions are particularly relevant to public authorities and highly regulated sectors.

The tables below set out the legal bases available for processing personal data and special categories of data.

Lawfulness of processing conditions

6(1)(a) – Consent of the data subject

6(1)(b) – Processing is necessary for the performance of a contract with the data subject or to take steps to enter into a contract

6(1)(c) – Processing is necessary for compliance with a legal obligation

6(1)(d) – Processing is necessary to protect the vital interests of a data subject or another person

6(1)(e) – Processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller

6(1)(f) – Necessary for the purposes of legitimate interests pursued by the controller or a third party, except where such interests are overridden by the interests, rights or freedoms of the data subject.

Note that this condition is not available to processing carried out by public authorities in the performance of their tasks.

Conditions for special categories of data

9(2)(a) – Explicit consent of the data subject, unless reliance on consent is prohibited by EU or Member State law

9(2)(b) – Processing is necessary for carrying out obligations under employment, social security or social protection law, or a collective agreement

9(2)(c) – Processing is necessary to protect the vital interests of a data subject or another individual where the data subject is physically or legally incapable of giving consent

9(2)(d) – Processing carried out by a not-for-profit body with a political, philosophical, religious or trade union aim provided the processing relates only to members or former members (or those who have regular contact with it in connection with those purposes) and provided there is no disclosure to a third party without consent

9(2)(e) – Processing relates to personal data manifestly made public by the data subject

9(2)(f) – Processing is necessary for the establishment, exercise or defence of legal claims or where courts are acting in their judicial capacity

9(2)(g) – Processing is necessary for reasons of substantial public interest on the basis of Union or Member State law which is proportionate to the aim pursued and which contains appropriate safeguards

9(2)(h) – Processing is necessary for the purposes of preventative or occupational medicine, for assessing the working capacity of the employee, medical diagnosis, the provision of health or social care or treatment or management of health or social care systems and services on the basis of Union or Member State law or a contract with a health professional

9(2)(i) – Processing is necessary for reasons of public interest in the area of public health, such as protecting against serious cross-border threats to health or ensuring high standards of healthcare and of medicinal products or medical devices

9(2)(j) – Processing is necessary for archiving purposes in the public interest, or scientific and historical research purposes or statistical purposes in accordance with Article 89(1)

See Articles 6-10 and Recitals 38, 40-50, 59

Consent

The GDPR has references to both ‘consent’ and ‘explicit consent’. The difference between the two is not clear given that both forms of consent have to be freely given, specific, informed and an unambiguous indication of the individual’s wishes.

Consent under the GDPR requires some form of clear affirmative action. Silence, pre-ticked boxes or inactivity does not constitute consent.

Consent must be verifiable. This means that some form of record must be kept of how and when consent was given.

Individuals have a right to withdraw consent at any time.

Remember that you can rely on alternative legal bases to consent – for example, where processing is necessary for the purposes of your organization’s or a third party’s legitimate interests.

Where you already rely on consent that was sought under the DPA or the EC Data Protection Directive (95/46/EC), you will not be required to obtain fresh consent from individuals if the standard of that consent meets the new requirements under the GDPR (see Recital 171). Implementation of the GDPR will require a review of consent mechanisms to ensure they meet the standards required under the legislation.

If you cannot reach this high standard of consent then you must find an alternative legal basis or cease or not start the processing in question.

See Articles 4(11), 6(1)(a), 7, 8, 9(2)(a) and Recitals 32, 38, 40, 42, 43, 51, 59, 171

Children’s personal data

The GDPR contains new provisions intended to enhance the protection of children’s personal data.

Privacy notices for children

Where services are offered directly to a child, you must ensure that your privacy notice is written in a clear, plain way that a child will understand.

Online services offered to children

If you offer an ‘information society service’ (ie target online services) at children, you will need to obtain consent from a parent or guardian to process the child’s data.

The GDPR states that parental/guardian consent for access to online services is required for children aged 16 and under – but note that it does permit member states to provide for a lower age in law, as long as it is not below 13.

‘Information society services’ includes most Internet services provided at the user’s request and for remuneration. The GDPR emphasizes that protection is particularly significant where children’s personal information is used for the purposes of marketing and creating online profiles.

Parental/guardian consent is not required where the processing is related to preventative or counseling services offered directly to a child.

See Article 8 and Recital 38, 58, 71

Individuals’ rights

The GDPR creates some new rights for individuals and strengthens some of the rights that currently exist under the DPA.

The GDPR provides the following rights for individuals:

1. The right to be informed 2. The right of access

3. The right to rectification 4. The right to erasure

5. The right to restrict processing

6. The right to data portability

7. The right to object

8. Rights in relation to automated decision making and profiling.

This part of the overview explains these rights.

The right to be informed

In brief…

The right to be informed encompasses your obligation to provide ‘fair processing information’, typically through a privacy notice. It emphasises the need for transparency over how you use personal data.

In more detail…

What information must be supplied?

The GDPR sets out the information that you should supply and when individuals should be informed.

The information you supply is determined by whether or not you obtained the personal data directly from individuals. See the table below for further information on this.

Much of the information you should supply is consistent with your current obligations under the DPA, but there is some further information you are explicitly required to provide.

The information you supply about the processing of personal data must be:

Concise, transparent, intelligible and easily accessible;

Written in clear and plain language, particularly if addressed to a child; and free of charge.

The table below summarizes the information you should supply to individuals and at what stage.

What information must be supplied?

The right of access

In brief…

What information is an individual entitled to under the GDPR?

Under the GDPR, individuals will have the right to obtain:

Confirmation that their data is being processed;

Access to their personal data; and

Other supplementary information – this largely corresponds to the information that should be provided in a privacy notice (see Article 15).

These are similar to existing subject access rights under the DPA.

In more detail…

What is the purpose of the right of access under GDPR?

The GDPR clarifies that the reason for allowing individuals to access their personal data is so that they are aware of and can verify the lawfulness of the processing (Recital 63).

Can I charge a fee for dealing with a subject access request?

You must provide a copy of the information free of charge. The removal of the £10 subject access fee is a significant change from the existing rules under the DPA.

However, you can charge a ‘reasonable fee’ when a request is manifestly unfounded or excessive, particularly if it is repetitive.

You may also charge a reasonable fee to comply with requests for further copies of the same information. This does not mean that you can charge for all subsequent access requests.

The fee must be based on the administrative cost of providing the information.

How long do I have to comply?

You will have less time to comply with a subject access request under the GDPR. Information must be provided without delay and at the latest within one month of receipt.

You will be able to extend the period of compliance by a further two months where requests are complex or numerous. If this is the case, you must inform the individual within one month of the receipt of the request and explain why the extension is necessary.

What if the request is manifestly unfounded or excessive?

Where requests are manifestly unfounded or excessive, in particular because they are repetitive, you can:

·   charge a reasonable fee taking into account the administrative costs of providing the information; or refuse to respond.

Where you refuse to respond to a request, you must explain why to the individual, informing them of their right to complain to the supervisory authority and to a judicial remedy without undue delay and at the latest within one month.

How should the information be provided?

You must verify the identity of the person making the request, using “reasonable means”.

If the request is made electronically, you should provide the information in a commonly used electronic format.

The GDPR introduces a new best practice recommendation that, where possible, organizations should be able to provide remote access to a secure self-service system, which would provide the individual with direct access to his or her information (Recital 63). This will not be appropriate for all organizations, but there are some sectors where this may work well.

The right to obtain a copy of information or to access personal data through a remotely accessed secure system should not adversely affect the rights and freedoms of others.

What about requests for large amounts of personal data?

Where you process a large quantity of information about an individual, the GDPR permits you to ask the individual to specify the information the request relates to (Recital 63).

The GDPR does not introduce an exemption for requests that relate to large amounts of data, but you may be able to consider whether the request is manifestly unfounded or excessive.

The right to rectification

In brief

When should personal data be rectified?

Individuals are entitled to have personal data rectified if it is inaccurate or incomplete.

If you have disclosed the personal data in question to third parties, you must inform them of the rectification where possible. You must also inform the individuals about the third parties to whom the data has been disclosed where appropriate.

In more detail…

How long do I have to comply with a request for rectification?

You must respond within one month.

This can be extended by two months where the request for rectification is complex.

Where you are not taking action in response to a request for rectification, you must explain why to the individual, informing them of their right to complain to the supervisory authority and to a judicial remedy.

The right to erasure

In brief…

The right to erasure is also known as ‘the right to be forgotten’. The broad principle underpinning this right is to enable an individual to request the deletion or removal of personal data whether there is no compelling reason for its continued processing.

In more detail…

When does the right to erasure apply?

The right to erasure does not provide an absolute ‘right to be forgotten’. Individuals have a right to have personal data erased and to prevent processing in specific circumstances:

Where the personal data is no longer necessary in relation to the purpose for which it was originally collected/processed.

When the individual withdraws consent.

When the individual objects to the processing and there is no overriding legitimate interest for continuing the processing.

The personal data was unlawfully processed (ie otherwise in breach of the GDPR).

The personal data has to be erased in order to comply with a legal obligation.

The personal data is processed in relation to the offer of information society services to a child.

Under the DPA, the right to erasure is limited to processing that causes unwarranted and substantial damage or distress. Under the GDPR, this threshold is not present. However, if the processing does cause damage or distress, this is likely to make the case for erasure stronger.

There are some specific circumstances where the right to erasure does not apply and you can refuse to deal with a request.

When can I refuse to comply with a request for erasure?

You can refuse to comply with a request for erasure where the personal data is processed for the following reasons:

·      To exercise the right of freedom of expression and information;

·      To comply with a legal obligation for the performance of a public interest task or exercise of official authority.

·      For public health purposes in the public interest;

·      Archiving purposes in the public interest, scientific research historical research or statistical purposes; or

·      The exercise or defense of legal claims.

How does the right to erasure apply to children’s personal data?

There are extra requirements when the request for erasure relates to children’s personal data, reflecting the GDPR emphasis on the enhanced protection of such information, especially in online environments.

If you process the personal data of children, you should pay special attention to existing situations where a child has given consent to processing and they later request erasure of the data (regardless of age at the time of the request), especially on social networking sites and internet forums. This is because a child may not have been fully aware of the risks involved in the processing at the time of consent (Recital 65).

Do I have to tell other organizations about the erasure of personal data?

If you have disclosed the personal data in question to third parties, you must inform them about the erasure of the personal data, unless it is impossible or involves disproportionate effort to do so.

The GDPR reinforces the right to erasure by clarifying that organizations in the online environment who make personal data public should inform other organizations who process the personal data to erase links to, copies or replication of the personal data in question.

While this might be challenging, if you process personal information online, for example on social networks, forums or websites, you must endeavor to comply with these requirements.

As in the example below, there may be instances where organizations that process the personal data may not be required to comply with this provision because an exemption applies.

Example

A search engine notifies a media publisher that it is delisting search results linking to a news report as a result of a request for erasure from an individual. If the publication of the article is protected by the freedom of expression exemption, then the publisher is not required to erase the article.

The right to restrict processing

In brief…

Under the DPA, individuals have a right to ‘block’ or suppress processing of personal data. The restriction of processing under the GDPR is similar.

When processing is restricted, you are permitted to store the personal data, but not further process it. You can retain just enough information about the individual to ensure that the restriction is respected in future.

In more detail…

When does the right to restrict processing apply?

You will be required to restrict the processing of personal data in the following circumstances:

·      Where an individual contests the accuracy of the personal data, you should restrict the processing until you have verified the accuracy of the personal data.

·      Where an individual has objected to the processing (where it was necessary for the performance of a public interest task or purpose of legitimate interests), and you are considering whether your organization’s legitimate grounds override those of the individual.

·      When processing is unlawful and the individual opposes erasure and requests restriction instead.

·      If you no longer need the personal data but the individual requires the data to establish, exercise or defend a legal claim.

You may need to review procedures to ensure you are able to determine where you may be required to restrict the processing of personal data.

If you have disclosed the personal data in question to third parties, you must inform them about the restriction on the processing of the personal data, unless it is impossible or involves disproportionate effort to do so.

You must inform individuals when you decide to lift a restriction on processing.

The right to data portability

In brief…

The right to data portability allows individuals to obtain and reuse their personal data for their own purposes across different services.

It allows them to move, copy or transfer personal data easily from one IT environment to another in a safe and secure way, without hindrance to usability.

Some organizations in the UK already offer data portability through the midata and similar initiatives which allow individuals to view, access and use their personal consumption and transaction data in a way that is portable and safe. It enables consumers to take advantage of applications and services which can use this data to find them a better deal, or help them understand their spending habits.

Example

Midata is used to improve transparency across the banking industry by providing personal current account customers access to their transactional data for their account(s), which they can upload to a third party price comparison website to compare and identify best value. A price comparison website displays alternative current account providers based on their own calculations.

In more detail…

When does the right to data portability apply?

The right to data portability 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.

How do I comply?

You must provide the personal data in a structured, commonly used and machine-readable form. Open formats include CSV files. Machine-readable means that the information is structured so that software can extract specific elements of the data. This enables other organizations to use the data.

The information must be provided free of charge.

If the individual requests it, you may be required to transmit the data directly to another organization if this is technically feasible. However, you are not required to adopt or maintain processing systems that are technically compatible with other organizations.

If the personal data concerns more than one individual, you must consider whether providing the information would prejudice the rights of any other individual.

How long do I have to comply?

You must respond without undue delay, and within one month.

This can be extended by two months where the request is complex or you receive a number of requests. You must inform the individual within one month of the receipt of the request and explain why the extension is necessary.

Where you are not taking action in response to a request, you must explain why to the individual, informing them of their right to complain to the supervisory authority and to a judicial remedy without undue delay and at the latest within one month.

The right to object

In brief…

When does the right to object apply?

Individuals have the right to object to:

·      Processing based on legitimate interests or the performance of a task in the public interest/exercise of official authority (including profiling);

·      Direct marketing (including profiling); and

·      Processing for purposes of scientific/historical research and statistics.

In more detail…

How do I comply with the right to object?

If you process personal data for the performance of a legal task or your organization’s legitimate interests

Individuals must have an objection on “grounds relating to his or her particular situation”.

You must stop processing the personal data unless:

·      You can demonstrate compelling legitimate grounds for the processing, which override the interests, rights and freedoms of the individual; or

·      The processing is for the establishment, exercise or defense of legal claims.

You must inform individuals of their right to object “at the point of first communication” and in your privacy notice.

This must be “explicitly brought to the attention of the data subject and shall be presented clearly and separately from any other information”.

If you process personal data for direct marketing purposes

You must stop processing personal data for direct marketing purposes as soon as you receive an objection. There are no exemptions or grounds to refuse.

You must deal with an objection to processing for direct marketing at any time and free of charge.

You must inform individuals of their right to object “at the point of first communication” and in your privacy notice.

This must be “explicitly brought to the attention of the data subject and shall be presented clearly and separately from any other information”.

These requirements are similar to existing rules under the DPA.

If you process personal data for research purposes

Individuals must have “grounds relating to his or her particular situation” in order to exercise their right to object to processing for research purposes.

If you are conducting research where the processing of personal data is necessary for the performance of a public interest task, you are not required to comply with an objection to the processing.

If your processing activities fall into any of the above categories and are carried out online:

You must offer a way for individuals to object online.

Rights related to automated decision making and profiling

In brief…

The GDPR provides safeguards for individuals against the risk that a potentially damaging decision is taken without human intervention. These rights work in a similar way to existing rights under the DPA.

Identify whether any of your processing operations constitute automated decision making and consider whether you need to update your procedures to deal with the requirements of the GDPR.

In more detail…

When does the right apply?

Individuals have the right not to be subject to a decision when:

·      It is based on automated processing; and

·      It produces a legal effect or a similarly significant effect on the individual.

You must ensure that individuals are able to:

·      Obtain human intervention;

·      Express their point of view; and

·      Obtain an explanation of the decision and challenge it.

Does the right apply to all automated decisions?

No. The right does not apply if the decision:

·      Is necessary for entering into or performance of a contract between you and the individual;

·      Is authorized by law (eg for the purposes of fraud or tax evasion prevention); or

·      Based on explicit consent. (Article 9(2)).

Furthermore, the right does not apply when a decision does not have a legal or similarly significant effect on someone.

What else does the GDPR say about profiling?

The GDPR defines profiling as any form of automated processing intended to evaluate certain personal aspects of an individual, in particular to analyse or predict their:

·      Performance at work;

·      Economic situation;

·      Health;

·      personal preferences;

·      Reliability;

·      Behavior;

·      Location; or

·      Movements.

When processing personal data for profiling purposes, you must ensure that appropriate safeguards are in place.

You must:

·      Ensure processing is fair and transparent by providing meaningful information about the logic involved, as well as the significance and the envisaged consequences.

·      Use appropriate mathematical or statistical procedures for the profiling.

·      Implement appropriate technical and organizational measures to enable inaccuracies to be corrected and minimize the risk of errors.

·      Secure personal data in a way that is proportionate to the risk to the interests and rights of the individual and prevents discriminatory effects.

Automated decisions taken for the purposes listed in Article 9(2) must not:

·      Concern a child; or

·      Be based on the processing of special categories of data unless:

o  You have the explicit consent of the individual; or

o  The processing is necessary for reasons of substantial public interest on the basis of EU / Member State law. This must be proportionate to the aim pursued, respect the essence of the right to data protection and provide suitable and specific measures to safeguard fundamental rights and the interests of the individual.

Accountability and governance

In brief…

The GDPR includes provisions that promote accountability and governance. These complement the GDPR’s transparency requirements. While the principles of accountability and transparency have previously been implicit requirements of data protection law, the GDPR’s emphasis elevates their significance.

You are expected to put into place comprehensive but proportionate governance measures. Good practice tools that the ICO has championed for a long time such as privacy impact assessments and privacy by design are now legally required in certain circumstances.

Ultimately, these measures should minimize the risk of breaches and uphold the protection of personal data. Practically, this is likely to mean more policies and procedures for organizations, although many organizations will already have good governance measures in place.

In more detail…

1.   What is the accountability principle?

2.   Records of processing activities (documentation)

3.   Data protection by design and by default

4.   Data protection impact assessments

5.   When does a Data Protection Officer need to be appointed under the GDPR?

6.    Codes of conduct and certification mechanisms

What is the accountability principle?

The new accountability principle in Article 5(2) requires you to demonstrate that you comply with the principles and states explicitly that this is your responsibility.

How can I demonstrate that I comply?

You must:

·      Implement appropriate technical and organizational measures that ensure and demonstrate that you comply. This may include internal data protection policies such as staff training, internal audits of processing activities, and reviews of internal HR policies.

·      Maintain relevant documentation on processing activities.

·      Where appropriate, appoint a data protection officer.

·      Implement measures that meet the principles of data protection by design and data protection by default. Measures could include:

·      Data minimization;

·      Pseudonymization;

·      Transparency;

·      Allowing individuals to monitor processing; and

·      Creating and improving security features on an ongoing basis.

·      Use data protection impact assessments where appropriate.

You can also:

Adhere to approved codes of conduct and/or certification schemes. See the section on codes of conduct and certification for more detail.

Records of processing activities (documentation)

As well as your obligation to provide comprehensive, clear and transparent privacy policies (see section on Individual rights), if your organization has more than 250 employees, you must maintain additional internal records of your processing activities.

If your organization has less than 250 employees you are required to maintain records of activities related to higher risk processing, such as:

• Processing personal data that could result in a risk to the rights and freedoms of individual; or • processing of special categories of data or criminal convictions and offenses.

What do I need to record?

You must maintain internal records of processing activities. You must record the following information. There are some similarities with ‘registrable particulars’ under the DPA, which must be notified to the ICO.

·      Name and details of your organization (and where applicable, of other controllers, your representative and data protection officer).

·      Purposes of the processing.

·      Description of the categories of individuals and categories of personal data.

·      Categories of recipients of personal data.

·      Details of transfers to third countries including documentation of the transfer mechanism safeguards in place.

·      Retention schedules.

·      Description of technical and organizational security measures.

You may be required to make these records available to the relevant supervisory authority for purposes of an investigation.

Data protection by design and by default

Under the GDPR, you have a general obligation to implement technical and organizational measures to show that you have considered and integrated data protection into your processing activities.

Under the DPA, privacy by design has always been an implicit requirement of the principles – eg relevance and non-excessiveness – that the ICO has consistently championed. The ICO has published guidance in this area.

Data protection impact assessments

What is a data protection impact assessment?

Data protection impact assessments (DPIAs) (also known as privacy impact assessments or PIAs) are a tool which can help organizations identify the most effective way to comply with their data protection obligations and meet individuals’ expectations of privacy. An effective DPIA will allow organizations to identify and fix problems at an early stage, reducing the associated costs and damage to reputation, which might otherwise occur.

While not a legal requirement under the DPA, the ICO has promoted the use of DPIAs as an integral part of taking a privacy by design approach. See the ICO’s Conducting privacy impact assessments code of practice for good practice advice.

When do I need to conduct a DPIA?

You must carry out a DPIA when:

·      Using new technologies; and

·      The processing is likely to result in a high risk to the rights and freedoms of individuals.

Processing that is likely to result in a high risk includes (but is not limited to):

·      Systematic and extensive processing activities, including profiling and where decisions that have legal effects – or similarly significant effects – on individuals.

·      Large scale processing of special categories of data or personal data relation to criminal convictions or offences.

This includes processing a considerable amount of personal data at regional, national or supranational level; that affects a large number of individuals; and involves a high risk to rights and freedoms eg based on the sensitivity of the processing activity.

·      Large scale, systematic monitoring of public areas (CCTV).

What information should the DPIA contain?

·      A description of the processing operations and the purposes, including, where applicable, the legitimate interests pursued by the controller.

·      An assessment of the necessity and proportionality of the processing in relation to the purpose.

·      An assessment of the risks to individuals.

·      The measures in place to address risk, including security and to demonstrate that you comply.

·      A DPIA can address more than one project.

Next steps

The Article 29 Working Party will be publishing guidance on DPIAs in the coming months.

When does a Data Protection Officer need to be appointed under the GDPR?

Under the GDPR, you must appoint a data protection officer (DPO) if you:

·      Are a public authority (except for courts acting in their judicial capacity);

·      Carry out large scale systematic monitoring of individuals (for example, online behavior tracking); or

·      Carry out large scale processing of special categories of data or data relating to criminal convictions and offenses.

You may appoint a single data protection officer to act for a group of companies or for a group of public authorities, taking into account their structure and size.

Any organization is able to appoint a DPO. Regardless of whether the GDPR obliges you to appoint a DPO, you must ensure that your organization has sufficient staff and skills to discharge your obligations under the GDPR.

What are the tasks of the DPO?

The DPO’s minimum tasks are defined in Article 39:

·      To inform and advise the organization and its employees about their obligations to comply with the GDPR and other data protection laws.

·      To monitor compliance with the GDPR and other data protection laws, including managing internal

·      data protection activities advise on data protection impact assessments; train staff and conduct internal audits.

·      To be the first point of contact for supervisory authorities and for individuals whose data is processed (employees, customers etc).

What does the GDPR say about employer duties?

You must ensure that:

·      The DPO reports to the highest management level of your organization – ie board level.

·      The DPO operates independently and is not dismissed or penalized for performing their task.

·      Adequate resources are provided to enable DPOs to meet their GDPR obligations.

Can we allocate the role of DPO to an existing employee?

Yes. As long, as the professional duties of the employee are compatible with the duties of the DPO and do not lead to a conflict of interests.

You can also contract out the role of DPO externally.

Does the data protection officer need specific qualifications?

The GDPR does not specify the precise credentials a data protection officer is expected to have.

It does require that they should have professional experience and knowledge of data protection law. This should be proportionate to the type of processing your organization carries out, taking into consideration the level of protection the personal data requires.

Codes of conduct and certification mechanisms

The GDPR endorses the use of approved codes of conduct and certification mechanisms to demonstrate that you comply.

The specific needs of micro, small and medium sized enterprises must be taken into account.

Signing up to a code of conduct or certification scheme is not obligatory. But if an approved code of conduct or certification scheme that covers your processing activity becomes available, you may wish to consider working towards it as a way of demonstrating that you comply.

Adhering to codes of conduct and certification schemes brings a number of benefits over and above demonstrating that you comply. It can:

·      Improve transparency and accountability – enabling individuals to distinguish the organizations that meet the requirements of the law and they can trust with their personal data.

·      Provide mitigation against enforcement action; and

·      Improve standards by establishing best practice.

When contracting work to third parties, including processors, you may wish to consider whether they have signed up to codes of conduct or certification mechanisms.

Who is responsible for drawing up codes of conduct?

Governments and regulators can encourage the drawing up of codes of conduct.

Codes of conduct may be created by trade associations or representative bodies.

Codes should be prepared in consultation with relevant stakeholders, including individuals (Recital 99).

Codes must be approved by the relevant supervisory authority; and where the processing is cross- border, the European Data Protection Board (the EDPB).

Existing codes can be amended or extended to comply with the requirements under the GDPR.

What will codes of conduct address?

Codes of conduct should help you comply with the law, and may cover topics such as:

·      Fair and transparent processing;

·      Legitimate interests pursued by controllers in specific contexts;

·      The collection of personal data;

·      The Pseudonymization of personal data;

·      The information provided to individuals and the exercise of individuals’ rights;

·      The information provided to and the protection of children (including mechanisms for obtaining parental consent);

·      Technical and organizational measures, including data protection by design and by default and security measures;

·      Breach notification;

·      Data transfers outside the EU; or

·      dispute resolution procedures.

Practical implications

If you sign up to a code of conduct, you will be subject to mandatory monitoring by a body accredited by the supervisory authority.

If you infringe the requirements of the code of practice, you may be suspended or excluded and the supervisory authority will be informed. You also risk being subject to a fine of up to 10 million Euros or 2 per cent of your global turnover.

Adherence to a code of conduct may serve as a mitigating factor when a supervisory authority is considering enforcement action via an administrative fine.

Who is responsible for certification mechanisms?

Member states, supervisory authorities, the EDPB or the Commission are required to encourage the establishment of certification mechanisms to enhance transparency and compliance with the Regulation.

Certification will be issued by supervisory authorities or accredited certification bodies.

What is the purpose of a certification mechanism?

A certification mechanism is a way of you demonstrating that you comply, in particular, showing that you are implementing technical and organizational measures.

A certification mechanism may also be established to demonstrate the existence of appropriate safeguards related to the adequacy of data transfers.

They are intended to allow individuals to quickly assess the level of data protection of a particular product or service.

Practical implications

Certification does not reduce your data protection responsibilities.

You must provide all the necessary information and access to your processing activities to the certification body to enable it to conduct the certification procedure.

Any certification will be valid for a maximum of three years. It can be withdrawn if you no longer meet the requirements of the certification, and the supervisory authority will be notified.

If you fail to adhere to the standards of the certification scheme, you risk being subject to an administrative fine of up to 10 million Euros or 2 per cent of your global turnover.

Breach notification

In brief…

The GDPR will introduce a duty on all organizations to report certain types of data breach to the relevant supervisory authority, and in some cases to the individuals affected.

In more detail…

What is a personal data breach?

A personal data breach means a breach of security leading to the destruction, loss, alteration, unauthorised disclosure of, or access to, personal data. This means that a breach is more than just losing personal data.

Example

A hospital could be responsible for a personal data breach if a patient’s health record is inappropriately accessed due to a lack of appropriate internal controls.

What breaches do I need to notify the relevant supervisory authority about?

You only have to notify the relevant supervisory authority of a breach where it is likely to result in a risk to the rights and freedoms of individuals. If unaddressed such a breach is likely to have a significant detrimental effect on individuals – for example, result in discrimination, damage to reputation, financial loss, loss of confidentiality or any other significant economic or social disadvantage.

This has to be assessed on a case by case basis. For example, you will need to notify the relevant supervisory authority about a loss of customer details where the breach leaves individuals open to identity theft. On the other hand, the loss or inappropriate alteration of a staff telephone list, for example, would not normally meet this threshold.

When do individuals have to be notified?

Where a breach is likely to result in a high risk to the rights and freedoms of individuals, you must notify those concerned directly.

A ‘high risk’ means the threshold for notifying individuals is higher than for notifying the relevant supervisory authority.

What information must a breach notification contain?

·      The nature of the personal data breach including, where possible:

·      The categories and approximate number of individuals concerned; and

·     the categories and approximate number of personal data records concerned;

·     The name and contact details of the data protection officer (if your organization has one) or other contact point where more information can be obtained;

·      A description of the likely consequences of the personal data breach; and

·      A description of the measures taken, or proposed to be taken, to deal with the personal data breach and, where appropriate, of the measures taken to mitigate any possible adverse effects.

How do I notify a breach?

A notifiable breach has to be reported to the relevant supervisory authority within 72 hours of the organization becoming aware of it. The GDPR recognizes that it will often be impossible to investigate a breach fully within that time-period and allows you to provide information in phases.

If the breach is sufficiently serious to warrant notification to the public, the organization responsible must do so without undue delay.

Failing to notify a breach when required to do so can result in a significant fine up to 10 million Euros or 2 per cent of your global turnover.

What should I do to prepare for breach reporting?

You should make sure that your staff understands what constitutes a data breach, and that this is more than a loss of personal data. You should ensure that you have an internal breach reporting procedure is in place. This will facilitate decision-making about whether you need to notify the relevant supervisory authority or the public.

In light of the tight timescales for reporting a breach – it is important to have robust breach detection, investigation and internal reporting procedures in place.

Transfer of data

In brief…

The GDPR imposes restrictions on the transfer of personal data outside the European Union, to third countries or international organizations, in order to ensure that the level of protection of individuals afforded by the GDPR is not undermined.

In more detail…

When can personal data be transferred outside the European Union?

Personal data may only be transferred outside of the EU in compliance with the conditions for transfer set out in Chapter V of the GDPR.

Transfers on the basis of a Commission decision

Transfers may be made where the Commission has decided that a third country, a territory or one or more specific sectors in the third country, or an international organization ensures an adequate level of protection.

Transfers subject to appropriate safeguards

You may transfer personal data where the organization receiving the personal data has provided adequate safeguards. Individuals’ rights must be enforceable and effective legal remedies for individuals must be available following the transfer.

Adequate safeguards may be provided for by:

·      A legally binding agreement between public authorities or bodies;

·      Binding corporate rules (agreements governing transfers made between organizations within in a corporate group);

·      Standard data protection clauses in the form of template transfer clauses adopted by the Commission;

·      Standard data protection clauses in the form of template transfer clauses adopted by a supervisory authority and approved by the Commission;

·      Compliance with an approved code of conduct approved by a supervisory authority;

·      Certification under an approved certification mechanism as provided for in the GDPR;

·      Contractual clauses agreed authorized by the competent supervisory authority; or

·      Provisions inserted in to administrative arrangements between public authorities or bodies authorized

·      by the competent supervisory authority.

The GDPR limits your ability to transfer personal data outside the EU where this is based only on your own assessment of the adequacy of the protection afforded to the personal data.

Authorizations of transfers made by Member States or supervisory authorities and decisions of the Commission regarding adequate safeguards made under the Directive will remain valid/remain in force until amended, replaced or repealed.

The GDPR provides derogations from the general prohibition on transfers of personal data outside the EU for certain specific situations. A transfer, or set of transfers, may be made where the transfer is:

·      Made with the individual’s informed consent;

·      Necessary for the performance of a contract between the individual and the organization or for pre-contractual steps taken at the individual’s request;

·      Necessary for the performance of a contract made in the interests of the individual between the controller and another person;

·      Necessary for important reasons of public interest;

·      Necessary for the establishment, exercise or defense of legal claims;

·      Necessary to protect the vital interests of the data subject or other persons, where the data subject is physically or legally incapable of giving consent; or

·      Made from a register which under UK or EU law is intended to provide information to the public (and which is open to consultation by either the public in general or those able to show a legitimate interest in inspecting the register).

The first three derogations are not available for the activities of public authorities in the exercise of their public powers.

What about one-off (or infrequent) transfers of personal data concerning only relatively few individuals?

Even where there is no Commission decision authorizing transfers to the country in question, if it is not possible to demonstrate that individual’s rights are protected by adequate safeguards and none of the derogations apply, the GDPR provides that personal data may still be transferred outside the EU. However, such transfers are permitted only where the transfer:

·      Is not being made by a public authority in the exercise of its public powers;

·      Is not repetitive (similar transfers are not made on a regular basis);

·      Involves data related to only a limited number of individuals;

·      Is necessary for the purposes of the compelling legitimate interests of the organization (provided such interests are not overridden by the interests of the individual); and

·      is made subject to suitable safeguards put in place by the organization (in the light of an assessment of all the circumstances surrounding the transfer) to protect the personal data.

In these cases, organizations are obliged to inform the relevant supervisory authority of the transfer and provide additional information to individuals.

National derogations

What derogations does the GDPR permit?

Article 23 enables Member States to introduce derogations to the GDPR in certain situations. These are similar to the existing exemptions from rights and duties in the DPA.

Member States can introduce exemptions from the GDPR’s transparency obligations and individual rights, but only where the restriction respects the essence of the individual’s fundamental rights and freedoms and is a necessary and proportionate measure in a democratic society to safeguard:

·      National security;

·      Defense;

·      Public security;

·      The prevention, investigation, detection or prosecution of criminal offences;

·      Other important public interests, in particular economic or financial interests, including budgetary and taxation matters, public health and security;

·      The protection of judicial independence and proceedings;

·      Breaches of ethics in regulated professions;

·      Monitoring, inspection or regulatory functions connected to the exercise of official authority regarding security, defense, other important public interests or crime/ethics prevention;

·      The protection of the individual, or the rights and freedoms of others; or

·      The enforcement of civil law matters.

Other Member State derogations or exemptions

Chapter IX provides that Member States can provide exemptions, derogations, conditions or rules in relation to specific processing activities. These include processing that relates to:

·      Freedom of expression and freedom of information;

·      Public access to official documents;

·      National identification numbers;

·      Processing of employee data;

·      Processing for archiving purposes and for scientific or historical research and statistical purposes;

·      Secrecy obligations; and

·      Churches and religious associations.

More about the GDPR Conducting privacy impact assessments code of practice

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s