Summary on European Union’s – General Data Protection Regulation (GDPR)
“The proposed new EU data protection regime extends the scope of the EU data protection law to all foreign companies processing data of EU residents. It provides for a harmonisation of the data protection regulations throughout the EU, thereby making it easier for non-European companies to comply with these regulations; however, this comes at the cost of a strict data protection compliance regime with severe penalties of up to 4% of worldwide turnover.”
The GDPR also brings a new set of “digital rights” for EU citizens in an age when the economic value of personal data is increasing in the digital economy.
The European Data Protection Regulation contains the following key requirements:
The regulation applies if the data controller (an organization that collects data from EU residents) or processor (an organization that processes data on behalf of data controller e.g. cloud service providers) or the data subject (person) is based in the EU. Furthermore the regulation also applies to organizations based outside the European Union if they collect or process personal data of EU residents. According to the European Commission “personal data is any information relating to an individual, whether it relates to his or her private, professional or public life. It can be anything from a name, a home address, a photo, an email address, bank details, posts on social networking websites, medical information, or a computer’s IP address.”
The regulation does not purport to apply to the processing of personal data for national security activities or law enforcement within the European Union; however, industry groups concerned about facing a potential conflict of laws have questioned whether Article 48 of the GDPR could be invoked to seek to prevent a data controller subject to a third country’s laws from complying with a legal order from that country’s law enforcement, judicial, or national security authorities to disclose to such authorities the personal data of an EU person, regardless of whether the data resides inside or outside the EU. Article 48 states that any judgment of a court or tribunal and any decision of an administrative authority of a third country requiring a controller or processor to transfer or disclose personal data may only be recognized or enforceable in any manner if based on an international agreement, such as a mutual legal assistance treaty in force between the requesting third (non-EU) country and the Union or a Member State, The data protection reform package also includes a separate Data Protection Directive for the police and criminal justice sector that provides rules on personal data exchanges at national, European and international level.
Single set of rules and one-stop shop
A single set of rules will apply to all EU member states. Each member state will establish an independent Supervisory Authority (SA) to hear and investigate complaints, sanction administrative offences, etc. SAs in each member state will cooperate with other SAs, providing mutual assistance and organising joint operations. Where a business has multiple establishments in the EU, it will have a single SA as its “lead authority”, based on the location of its “main establishment” (i.e., the place where the main processing activities take place). The lead authority will act as a “one-stop shop” to supervise all the processing activities of that business throughout the EU (Articles 46–55 of the GDPR). A European Data Protection Board (EDPB) will coordinate the SAs. EDPB will replace the Article 29 Working Party.
There are exceptions for data processed in an employment context and data processed for the purposes of national security that still might be subject to individual country regulations (Articles 2(2)(a) and 82 of the GDPR).
Responsibility and accountability
The notice requirements remain and are expanded. They must include the retention time for personal data and contact information for data controller and data protection officer has to be provided.
Automated individual decision-making, including profiling (Article 22) is contestable, similarly to the Data Protection Directive (Article 15). Citizens have rights to question and fight significant decisions that affect them that have been made on a solely algorithmic basis. Many media outlets have commented on the introduction of a “right to explanation” of algorithmic decisions, but legal scholars have since argued that the existence of such a right is highly unclear without judicial test, and limited at best.
In order to be able to demonstrate compliance with the GDPR, the data controller should implement measures which meet the principles of data protection by design and data protection by default. Privacy by Design and by Default (Article 25) require that data protection measures are designed into the development of business processes for products and services. Such measures include pseudonymising personal data, by the controller, as soon as possible (Recital 78).
It is the responsibility and liability of the data controller to implement effective measures and be able to demonstrate the compliance of processing activities even if the processing is carried out by a data processor on behalf of the controller. (Recital 74).
Data Protection Impact Assessments (Article 35) have to be conducted when specific risks occur to the rights and freedoms of data subjects. Risk assessment and mitigation is required and prior approval of the Data Protection Authorities (DPA) is required for high risks. Data Protection Officers (Articles 37–39) are to ensure compliance within organizations.
They have to be appointed:
- for all public authorities, except for courts acting in their judicial capacity
- if the core activities of the controller or the processor consist of
- processing operations which, by virtue of their nature, their scope and/or their purposes, require regular and systematic monitoring of data subjects on a large scale
- processing on a large scale of special categories of data pursuant to Article 9 and personal data relating to criminal convictions and offences referred to in Article 10
Lawful Basis For Processing
Data can only be processed if there is at least one lawful basis to do so. The lawful bases for processing data are:
- the data subject has given consent to the processing of his or her personal data for one or more specific purposes.
- processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract.
- processing is necessary for compliance with a legal obligation to which the controller is subject.
- processing is necessary in order to protect the vital interests of the data subject or of another natural person.
- 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.
- processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.
Where consent is used as the lawful basis for processing, consent must be explicit for data collected and the purposes data are used for (Article 7; defined in Article 4). Consent for children must be given by the child’s parent or custodian, and verifiable (Article 8). Data controllers must be able to prove “consent” (opt-in) and consent may be withdrawn.
Data Protection Officer
Where the processing is carried out by a public authority, except for courts or independent judicial authorities when acting in their judicial capacity, or where, in the private sector, processing is carried out by a controller whose core activities consist of processing operations that require regular and systematic monitoring of the data subjects, a person with expert knowledge of data protection law and practices should assist the controller or processor to monitor internal compliance with this Regulation.
The DPO is similar but not the same as a Compliance Officer as they are also expected to be proficient at managing IT processes, data security (including dealing with cyber-attacks) and other critical business continuity issues around the holding and processing of personal and sensitive data. The skill set required stretches beyond understanding legal compliance with data protection laws and regulations.
The appointment of a DPO within a large organization will be a challenge for the Board as well as for the individual concerned. There are myriad governance and human factor issues that organizations and companies will need to address given the scope and nature of the appointment. In addition, the post holder will need to create their own support team and will also be responsible for their own continuing professional development as they need to be independent of the organization that employs them, effectively as a “mini-regulator”.
More details on the function and the role of Data Protection Officer were given on 13 December 2016 (revised 5 April 2017) with a guideline document.
The GDPR refers to pseudonymisation as a process that transforms personal data in such a way that the resulting data cannot be attributed to a specific data subject without the use of additional information. An example of pseudonymisation is encryption, which renders the original data unintelligible and the process cannot be reversed without access to the correct decryption key. The GDPR requires that this additional information (such as the decryption key) be kept separately from the pseudonymised data.
Another example of pseudonymisation is tokenization, which is a non-mathematical approach to protecting data at rest that replaces sensitive data with non-sensitive substitutes, referred to as tokens. These tokens have no extrinsic or exploitable meaning or value. Tokenization does not alter the type or length of data, which means it can be processed by legacy systems such as databases that may be sensitive to data length and type.
Tokens require significantly less computational resources to process and less storage space in databases than traditionally encrypted data. This is achieved by keeping specific data fully or partially visible for processing and analytics while sensitive information is kept hidden.
Pseudonymisation is recommended to reduce the risks to the concerned data subjects and also help controllers and processors to meet their data-protection obligations (Recital 28).
Although the GDPR encourages the use of pseudonymisation to “reduce risks to the data subjects,” (Recital 28) pseudonymised data is still considered personal data (Recital 26) and therefore remains covered by the GDPR.
Under the GDPR, the Data Controller will be under a legal obligation to notify the Supervisory Authority without undue delay. The reporting of a data breach is not subject to any de minimis standard and must be reported to the Supervisory Authority within 72 hours after having become aware of the data breach (Article 33). Individuals have to be notified if adverse impact is determined (Article 34). In addition, the data processor will have to notify the controller without undue delay after becoming aware of a personal data breach (Article 33).
However, the notice to data subjects is not required if the data controller has implemented appropriate technical and organizational protection measures that render the personal data unintelligible to any person who is not authorized to access it, such as encryption (Article 34).
The following sanctions can be imposed:
- a warning in writing in cases of first and non-intentional non-compliance,
- regular periodic data protection audits,
- a fine up to 10000000 EUR or up to 2% of the annual worldwide turnover of the preceding financial year in case of an enterprise, whichever is greater, where there has been an infringement of the following provisions (Article 83, Paragraph 4):
- the obligations of the controller and the processor pursuant to Articles 8, 11, 25 to 39 and 42 and 43,
- the obligations of the certification body pursuant to Articles 42 and 43,
- the obligations of the monitoring body pursuant to Article 41(4).
- a fine up to 20000000 EUR or up to 4% of the annual worldwide turnover of the preceding financial year in case of an enterprise, whichever is greater,where there has been an infringement of the following provisions: (Article 83, Paragraph 5 & 6).
- the basic principles for processing, including conditions for consent, pursuant to Articles 5, 6, 7 and 9,
- the data subjects’ rights pursuant to Articles 12 to 22,
- the transfers of personal data to a recipient in a third country or an international organisation pursuant to Articles 44 to 49,
- any obligations pursuant to Member State law adopted under Chapter IX,
- non-compliance with an order or a temporary or definitive limitation on processing or the suspension of data flows by the supervisory authority pursuant to Article 58(2) or failure to provide access in violation of Article 58(1).
Right of access
The Right of Access (Article 15) is a data subject right. This gives citizens the right to get access to their personal data and information about how these personal data are being processed. A Data Controller has to provide, upon request, an overview of the categories of data that are being processed (Article 15(1)(b)) as well as a copy of the actual data (Article 15(3)). Furthermore the Data Controller has to inform the data subject on details about the processing such as; what the purposes are of the processing (Article 15(1)(a)), with whom the data are shared (Article 15(1)(c)) and how it acquired the data (Article 15(1)(g)).
Right to erasure
A right to be forgotten was replaced by a more limited right to erasure in the version of the GDPR adopted by the European Parliament in March 2014. Article 17 provides that the data subject has the right to request erasure of personal data related to them on any one of a number of grounds including non-compliance with article 6.1 (lawfulness) that includes a case (f) where the legitimate interests of the controller is overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data (see also Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González).
A person shall be able to transfer their personal data from one electronic processing system to and into another, without being prevented from doing so by the data controller. Data that has been sufficiently anonymised is excluded, but data that have only been de-identified but remains possible to link to the individual in question, such as by him or her providing the relevant identifier, is not. Both data that have been ‘provided’ by the data subject, and data that have been ‘observed’ — such as about their behaviour — is within scope. In addition, the data must be provided by the controller in a structured and commonly used Open standard electronic format. The right to data portability is provided by Article 20 of the GDPR. Legal experts see in the final version of this measure a “new right” created that “reaches beyond the scope of data portability between two controllers as stipulated in Article 18”. (Note that the Article number was updated to Article 20 in the final release version. The quotation was accurate at the time.)
Data protection by Design and by Default
Data protection by Design and by Default (Article 25) requires that data protection is designed into the development of business processes for products and services. This requires that privacy settings must be set at a high level by default and that technical and procedural measures should be taken care by the controller in order to make sure that the processing, throughout the whole processing lifecycle, complies with the regulation. Controllers should also implement mechanisms to ensure that personal data are only processed when necessary for each specific purpose.
A report by ENISA (the European Union Agency for Network and Information Security) elaborates on what needs to be done to achieve privacy and data protection by default. It specifies that encryption and decryption operations must be carried out locally, not by remote service, because both keys and data must remain in the power of the data owner if any privacy is to be achieved. The report specifies that outsourced data storage on remote clouds is practical and relatively safe, as long as only the data owner, not the cloud service, holds the decryption keys.
Records of processing activities
Records of processing activities must be maintained, that include purposes of the processing, categories involved and envisaged time limits. These records must be made available to the supervisory authority on request. (article 30).