[BreachExchange] What is GDPR? Everything you need to know

[Inga Goddijn]

http://www.itpro.co.uk/it-legislation/27814/what-is-gdpr-everything-you-need-to-know

*What is the GDPR?*

The EU's General Data Protection Regulation (GDPR)
<http://ec.europa.eu/justice/data-protection/reform/files/regulation_oj_en.pdf>
is the result of four years of work by the EU to bring data protection
legislation into line with new, previously unforeseen ways that data is now
used.

Currently, the UK relies on the Data Protection Act 1998, which was enacted
following the 1995 EU Data Protection Directive, but this will be
superseded by the new legislation. It introduces tougher fines for
non-compliance and breaches, and gives people more say over what companies
can do with their data. It also makes data protection rules more or less
identical throughout the EU.

*Why was the GDPR drafted?*

The drivers behind the GDPR are twofold. Firstly, the EU wants to give
people more control over how their personal data is used, bearing in mind
that many companies like Facebook and Google swap access to people's data
for use of their services. The current legislation was enacted before the
internet and cloud technology created new ways of exploiting data, and the
GDPR seeks to address that. By strengthening data protection legislation
and introducing tougher enforcement measures, the EU hopes to improve trust
in the emerging digital economy.

Secondly, the EU wants to give businesses a simpler, clearer legal
environment in which to operate, making data protection law identical
throughout the single market (the EU estimates this will save businesses a
collective €2.3 billion a year).

*When will the GDPR apply?*

The GDPR will apply in all EU member states from 25 May 2018. Because GDPR
is a regulation, not a directive, the UK does not need to draw up new
legislation - instead, it will apply automatically. While it came into
force on 24 May 2016, after all parts of the EU agreed to the final text,
businesses and organisations have until 25 May 2018 until the law actually
applies to them.

*So who does the GDPR apply to?*

'Controllers' and 'processors' of data need to abide by the GDPR. A data
controller states how and why personal data is processed, while a processor
is the party doing the actual processing of the data. So the controller
could be any organisation, from a profit-seeking company to a charity or
government. A processor could be an IT firm doing the actual data
processing.

Even if controllers and processors are based outside the EU, the GDPR will
still apply to them so long as they're dealing with data belonging to EU
citizens.

It's the controller's responsibility to ensure their processor abides by
data protection law and processors must themselves abide by rules to
maintain records of their processing activities. If processors are involved
in a data breach, they are far more liable under GDPR than they were under
the Data Protection Act.

*When can I process data under the GDPR?*

Once the legislation comes into effect, controllers must ensure personal
data is processed lawfully, transparently, and for a specific purpose. Once
that purpose is fulfilled and the data is no longer required, it should be
deleted.

*What do you mean by 'lawful'?*

'Lawfully' has a range of alternative meanings, not all of which need
apply. Firstly, it could be lawful if the subject has consented to their
data being processed. Alternatively, lawful can mean to comply with a
contract or legal obligation; to protect an interest that is "essential for
the life of" the subject; if processing the data is in the public interest;
or if doing so is in the controller's legitimate interest - such as
preventing fraud.

At least one of these justifications must apply in order to process data.

*How do I get consent under the GDPR?*

Consent must be an active, affirmative action by the data subject, rather
than the passive acceptance under some current models that allow for
pre-ticked boxes or opt-outs.

Controllers must keep a record of how and when an individual gave consent,
and that individual may withdraw their consent whenever they want. If your
current model for obtaining consent doesn't meet these new rules, you'll
have to bring it up to scratch or stop collecting data under that model
when the GDPR applies in 2018.

*What counts as personal data under the GDPR?*

The EU has substantially expanded the definition of personal data under the
GDPR. To reflect the types of data organisations now collect about people,
online identifiers such as IP addresses now qualify as personal data. Other
data, like economic, cultural or mental health information, are also
considered personally identifiable information.

Pseudonymised personal data may also be subject to GDPR rules, depending on
how easy or hard it is to identify whose data it is.

Anything that counted as personal data under the Data Protection Act also
qualifies as personal data under the GDPR.

*When can people access the data we store on them?*

People can ask for access at "reasonable intervals", and controllers must
generally respond within one month. The GDPR requires that controllers and
processors must be transparent about how they collect data, what they do
with it, and how they process it, and must be clear (using plain language)
in explaining these things to people.

People have the right to access any information a company holds on them,
and the right to know why that data is being processed, how long it's
stored for, and who gets to see it. Where possible, data controllers should
provide secure, direct access for people to review what information a
controller stores about them.

They can also ask for that data, if incorrect or incomplete, to be
rectified whenever they want.

*What's the 'right to be forgotten'?*

Individuals also have the right to demand that their data is deleted if
it's no longer necessary to the purpose for which it was collected. This is
known as the 'right to be forgotten'. Under this rule, they can also demand
that their data is erased if they've withdrawn their consent for their data
to be collected, or object to the way it is being processed.

The controller is responsible for telling other organisations (for
instance, Google) to delete any links to copies of that data, as well as
the copies themselves.

*What if they want to move their data elsewhere?*

Controllers must now store people's information in commonly used formats
(like CSV files), so that they can move a person's data to another
organisation (free of charge) if the person requests it. Controllers must
do this within one month.

*What if we suffer a data breach?*

If you suffer a data breach that puts the rights and freedoms of
individuals at risk, you must notify a data protection authority (the
Information Commissioner's Office (ICO) in the UK) within 72 hours of your
organisation becoming aware of it.

While you can't be expected to detail every aspect of a breach upon
discovering it, you should notify the data protection authority of the
nature of the data that has been breached, and the approximate number of
people affected. You should also detail the potential consequences for
those people and what measures you have taken or plan to take.

You should also notify the people affected by the breach, even before you
tell the data protection authority.

If you don't meet the 72-hour deadline, you risk being saddled with a fine
of up to €10 million, or 2% of your global annual turnover, whichever is
greater.

*Okay, what other consequences are there for failing to obey the GDPR?*

Well, if you don't follow the basic principles for processing data, such as
consent, ignore individuals' rights over their data, or transfer data to
another country, the fines are even worse. Your data protection authority
could issue a penalty of up to €20 million or 4% of your global annual
turnover, whichever is greater.

*But isn't the UK leaving the EU?*

Yes, but the UK government has not yet triggered Article 50, which sets in
motion the act of leaving the EU within a two-year timeframe. This means
the GDPR will take effect before the legal consequences of the Brexit vote,
meaning the UK must still comply for the time being.

Karen Bradley, secretary of state for Culture, Media and Sport, said in
October
<http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/culture-media-and-sport-committee/responsibilities-of-the-secretary-of-state-for-culture-media-and-sport/oral/42119.html>:
"We will be members of the EU in 2018 and therefore it would be expected
and quite normal for us to opt into the GDPR and then look later at how
best we might be able to help British business with data protection while
maintaining high levels of protection for members of the public."

Lawyers believe the UK is likely to adopt equivalent legislation to the
GDPR following Brexit, so UK companies using EU data can continue to do so
legally, but doubts remain over what will happen, because it depends on the
nature of the UK's exit from the EU. EU rules on data protection could
apply fully in the UK if it remains in the single market, or the UK may
replace all EU rules with its own if it does not stay.
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