Introduced in May 2018, the aim of the GDPR and the 2018 Data Protection Act is to protect people from privacy and data breaches and abuses of their personal information.
It is the first major change in legislation since the 1998 UK Data Protection Act, and the 1995 EU directive on which it based, although many of its key measures have been highlighted as good practice for a number of years. The key principles of data privacy still remain, but there are significant changes to take account of changes in the digital environment
Some of the key changes are:
Under GDPR organizations in breach of GDPR can be fined up to 4% of annual global turnover or €20 Million (whichever is greater). This is the maximum fine that can be imposed for the most serious infringements e.g.not having sufficient customer consent to process data or violating the core of Privacy by Design concepts. There is a tiered approach to fines e.g. a company can only be fined up to 2% for not having their records in order , not notifying the supervising authority and data subject about a breach or not conducting impact assessment. It is important to note that these rules apply to both controllers and processors — meaning ‘clouds’ will not be exempt from GDPR enforcement.
The conditions for consent have been strengthened, and companies will no longer be able to use long illegible terms and conditions full of legalese, as the request for consent must be given in an intelligible and easily accessible form, with the purpose for data processing attached to that consent. Consent must be clear and distinguishable from other matters and provided in an intelligible and easily accessible form, using clear and plain language. It must be as easy to withdraw consent as it is to give it.
Data Subject Rights
Notification of breaches: Under the GDPR, breach notification will become mandatory in all member states where a data breach is likely to “result in a risk for the rights and freedoms of individuals”. This must be done within 72 hours of first having become aware of the breach. Data processors will also be required to notify their customers, the controllers, “without undue delay” after first becoming aware of a data breach.
The right to access: Data subjects have the right to obtain from the data controller confirmation as to whether or not personal data concerning them is being processed, where and for what purpose. Under the GDPR, this right is extended to require the controller to provide a copy of the personal data, free of charge, in an electronic format.
Right to be Forgotten: The right to be forgotten entitles the data subject to have the data controller erase his/her personal data, cease further dissemination of the data, and potentially have third parties halt processing of the data. The conditions for erasure, as outlined in article 17, include the data no longer being relevant to original purposes for processing, or a data subjects withdrawing consent. It should also be noted that this right requires controllers to compare the subjects’ rights to “the public interest in the availability of the data” when considering such requests.
Data Portability: One of the new rights under the GDPR isdata portability – the right for a data subject to receive the personal data concerning them, which they have previously provided in a ‘commonly use and machine readable format’ and have the right to transmit that data to another controller.
Privacy by Design
Privacy by design as a concept has been part of ICO best practice advice for years now, but it is only just becoming part of a legal requirement with the GDPR. Privacy by design requires the inclusion of data protection from the onset of the designing of systems, rather than as an addition. It requires data controllers to be proactive in anticipating and managing risks to data protection, emphasizing prevention of breaches rather than mopping up afterwards
Data Protection Officers
Data Protection Officers (DPO) are required only for those controllers and processors whose core activities consist of processing operations which require regular and systematic monitoring of data subjects on a large scale or of special categories of data or data relating to criminal convictions and offences. Where they are appointed, the DPO:
- Must be appointed on the basis of professional qualities and, in particular, expert knowledge on data protection law and practices
- May be a staff member or an external service provider
- Contact details must be notified to to the relevant regulator, the ICO in the UK
- Must be provided with appropriate resources to carry out their tasks and maintain their expert knowledge
- Must report directly to the highest level of management
- Must not carry out any other tasks that could results in a conflict of interest.
Mode of Regulation
Under GDPR, there is an expectation, that you will self-regulate to a greater extent, keeping records to demonstrate that you are compliant. The ICO will then regulate your activities on the basis of your own records. There are two cases where you are required to notify them:
- Where a breach occurs with significant likelihood of harm to data subjects, you are required to notify them with 72 hours
- Where an impact assessment highlights the processing of highly sensitive personal information, you are required to share your findings with them
For more information about the GDPR, click here,or
For more information about the 2018 UK Data Protection Act implementing the GDPR in the UK, click here
Our online training programme comes in two flavours: one for the person(s) responsible for data protection in your company, and the second lighter version for all staff: you are only as strong as your weakest link!
GDataPR.com has been developed to provide you with cost-effective resources.