After the UK voted to leave the EU in the referendum vote last year, many people questioned whether the UK needed to worry about the potential impact of the General Data Protection Regulation (GDPR).
However, regardless of how far the Brexit negotiations have progressed, the government has confirmed that the decision will not affect the new regulations and that it will still be passed into UK and European law on 25th May 2018.
So what do I need to know?
GDPR is a big leap forward in data protection law for both individuals (data subjects) and organisations who store, process or transmit data (data controllers and processors). Although it has taken some years to negotiate, this new piece of legislation will finally start to bring the legal and regulatory environment into alignment with how we conduct business in the digital age.
Acting as a one-stop-shop for businesses who operate in the multiple EU member states, the primary aim of GDPR is to give control of personal data back to European citizens and to simplify the regulatory environment for international businesses. The new legislation will place controls on how domestic and foreign organisations process the data of EU residents.
Currently organisations have to comply with multiple regulations depending on the countries and industries they operate within. This changes means that data controllers and data processors will now be answerable to the supervisory authority within the member state where they are primarily located. GDPR’s aim is to harmonise data protection laws across the EU and will be directly effective in each member state.
Although there will now only be one set of criteria for an organisation to adhere to, there will be increased regulation, obligations and high potential penalties for breaches in the law. This will affect businesses in numerous ways.
Who will GDPR apply to?
At the most basic level, if an organisation is currently subject to the Data Protection Act then they will be subject to GDPR. However, more specifically, GDPR will apply increasingly stringent control over ‘data controllers’ and ‘data processors’.
If you are a data controller, you will be required to comply with the requirements and will now also be obligated to ensure that your contracts with data processors also comply with the regulation.
If you are a data processor, you will now have to comply with a set of direct obligations and liabilities. For example, you will be required to maintain records of personal data and processing activities and you will have significantly more legal liability if you are responsible for a data breach.
GDPR has also expanded its territorial scope and will apply to processing carried out by organisations operating outside of the EU who offer goods and service to EU residents.
Summary of key changes
A full and detailed overview of GDPR and its impact for organisation can be found on the ICO’s website. However, we have highlighted some of the key points below that organisations may want to start to consider.
Lawful processing and consent
Under GDPR, data can only be processed lawfully, for example, where the individual in question (the data subject) has given their informed consent. Where this information is sensitive personal data, such as racial origins, religious belief or political affiliations, this consent must be ‘unambiguous’.
Controllers and processors must obtain the informed consent of the data subject for the use of the data, especially if the data is being moved outside of the EU.
GDPR also enshrines in law the ‘right to be forgotten’. This means that data processors must delete and erase data where it is no longer required for the purposes it was gathered for, and also where the data subject withdraws their consent. This could potentially be a significant undertaking for businesses as it will not only just apply to current data, but includes legacy data too. Companies will be required to identify relevant legacy data and classify where consent was originally given. Where it wasn’t, records will need to be deleted.
For lawful processing, organisations must establish and determine their legal basis for processing data and they must ensure that they document this. Consent, how and when it was given, must also be recorded.