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Get ready for new data protection rules: EU General Data

New data protection landscape

After over three years of discussion at many levels, the new EU data protection framework has finally been agreed. It takes the form of a Regulation - the General Data Protection Regulation (GDPR). The GDPR will replace the current Directive and will be directly applicable in all Member States without the need for implementing national legislation. It will not come into force immediately (this is likely to be in the first half of 2018). However, as it contains some onerous obligations, it will have an immediate impact. This article summarises the key provisions, and suggests steps that organizations should be taking now to get ready for implementation.

Expanded territorial reach

As well as applying to companies established in the EU, the GDPR catches data controllers and processors outside the EU whose processing activities relate to the offering of goods or services (even if for free) to, or monitoring the behaviour (within the EU) of, EU data subjects. Many will need to appoint a representative in the EU. A company outside the EU which is targeting consumers in the EU will therefore be subject to the GDPR. This is not the case currently.

Accountability and privacy by design

The GDPR places onerous accountability obligations on data controllers to demonstrate compliance. This includes requiring them to: (i) maintain certain documentation; (ii) conduct a data protection impact assessment for more risky processing (DPAs should compile lists of what is caught); and (iii) implement data protection by design and by default, eg data minimisation.

Consent

A data subject's consent to processing of their personal data must be freely given, specific, informed and unambiguous, shown either by a statement or a clear affirmative action which signifies agreement to the processing. It can be withdrawn. Consent must be "explicit" for sensitive data. The data controller is required to be able to demonstrate that consent was given. Existing consents still work, provided they meet the new conditions.

There has been much debate around whether consent provides a valid legal ground for processing where there is a significant imbalance between the data subject and data controller. The agreed text states that in assessing whether consent has been freely given, account shall be taken, for example, of whether the performance of a contract is made conditional on the consent to processing data that is not necessary to perform that contract. This may affect some e-commerce services, among others. In addition, Member States may provide more specific rules for use of consent in the employment context. The Recitals add that consent is not freely given if the data subject had no genuine and free choice and is unable to withdraw or refuse consent without detriment.

Where personal data is processed for direct marketing, the data subject will have a right to object. This right will have to be explicitly brought to their attention.

Another topic of debate relates to parental consent being required for children to receive information society services. The compromise (that Member States can lower the age from 16 to 13) will result in a lack of harmonisation and companies who operate across several Member States generally choosing to meet the highest standard. The Recitals provide, however, that parental consent is not required in the context of preventative or counselling services offered directly to a child.

Right to be forgotten

Individuals can request the erasure of their personal data without undue delay by the data controller in certain situations. A good example is where they withdraw consent and no other legal ground for processing applies. This topic has attracted a huge amount of interest, particularly following the CJEU decision in the Google Spain case.

Alongside this obligation is one to take reasonable steps to inform third parties that the data subject has requested the erasure of any links to, or copies of, that data.

Data breach notification

Data controllers must notify most data breaches to the DPA. This must be done without undue delay and, where feasible, within 72 hours of awareness. A reasoned justification must be provided if this timeframe is not met. In some cases, the data controller must also notify the affected data subjects without undue delay. The text contains a welcome threshold. Notification does not need to be made to the DPA if the breach is unlikely to result in a risk to the rights and freedoms of individuals. The threshold for notification to data subjects is that there is likely to be a "high risk" to their rights and freedoms. While this may lessen the impact, all companies will have to adopt internal procedures for handling data breaches in any case.

Data processors have new direct obligations

One of the key changes in the GDPR is that data processors have direct obligations. This includes implementing technical and organisational measures, notifying the controller without undue delay of data breaches and appointing a Data Protection Officer (DPO) (if required).

The new status of data processors will likely impact how data protection matters are addressed in supply agreements.

Increased fines

The GDPR establishes a tiered approach to penalties for breach which enables the DPAs to impose fines for some infringements of up to 4% of annual worldwide turnover (eg breach of requirements relating to international transfers or the basic principles for processing, such as conditions for consent). Other specified infringements would attract a fine of up to 2% of annual worldwide turnover.

Removal of notification requirement

A welcome change for data controllers is the removal of the requirement to notify or seek approval from the DPA in many circumstances.

Instead of notification, the policy is now to require data controllers to put in place effective procedures and mechanisms focussing on more high risk operations (eg involving new technologies) and carry out a data protection impact assessment to consider the likelihood and severity of the risk, particularly with large scale processing. The effort required, and the potential fines for getting it wrong, are likely to outweigh the benefit.

International transfers

Those who had hoped for a complete revamp in this area will be disappointed as the GDPR contains essentially the same toolkit. The process looks likely to be improved by the removal of the need for prior authorisation for transfers based on approved safeguards such as Commission or DPA approved contracts. However, the GDPR removes self-assessment as a basis for transfer: this is currently only used as a standalone basis in a few Member States and is arguably a necessary sacrifice in order to achieve uniformity.

The consent derogation has also been amended: data exporters who rely on consent to move data outside the EU will need to look carefully at whether data subjects have been sufficiently informed of the risks of transfer.

The legitimate interests concept has been introduced as a new derogation, but its scope is limited. It may be used where the transfer is not repetitive, concerns only a number of data subjects and is necessary for compelling legitimate interests (not overridden by the rights of the data subject) and where the controller has assessed all the circumstances and adduced suitable safeguards. The DPA must also be informed. It is hard to see how this is useful in practice. It will be a relief to many that an outright ban on transfers to foreign regulators without DPA approval has not survived in the adopted text. The GDPR does nothing to resolve the issues around "safe harbour".

Binding corporate rules - more streamlined

This method of compliance will become increasingly popular for intra-group transfers. The GDPR expressly recognises BCRs for controllers and processors as a means of legitimising intra-group international data transfers. The BCRs must be legally binding and apply to and be enforced by every member of the group of undertakings/enterprises engaged in a joint economic activity, including their employees. They must expressly confer enforceable rights on data subjects. The approach will be more streamlined with a clear list of requirements.

One stop shop

When Viviane Reding introduced the Commission's proposed text, the "One Stop Shop" was one of the key elements of her vision. In order to enable individuals to have their cases dealt with locally, the agreed GDPR text contains a detailed regime with a Lead Authority and Concerned Authorities working together. It allows for local cases and urgent cases to be handled appropriately. How the One Stop Shop will work in practice, and whether it can work in such a way that it does not encourage forum shopping, remains to be seen.

Data protection officers

In certain circumstances, data controllers and processors must designate a DPO as part of their accountability programme. The compromise threshold is (i) processing is carried out by a public authority, (ii) the core activities of the controller or processor consist of processing which, by its nature, scope or purposes, requires regular and systematic monitoring of data subjects on a large scale, or (iii) the core activities consist of processing on a large scale of special categories of data.

The DPO will need sufficient expert knowledge. This will depend on the processing activities for which the officer will be responsible.

The DPO may be employed or under a service contract. A group of undertakings may appoint a single DPO (conditional on accessibility by all), as may certain groups of public authorities.

What happens next?

Now that political agreement has been reached, there will be a period of technical checking of the text and formal approvals. This may take several months and we cannot rule out last minute changes during this time. Only after that process is complete will the two-year period run before the GDPR is in force. While this may seem a long time away, organisations are already moving to compliance as many of the obligations (such as the accountability provisions) will take time to integrate.

Eight things you should be doing now to prepare

  1. Prepare for data security breaches Put in place clear policies and well-practised procedures to ensure that you can react quickly to any data breach and notify data subjects in time where required.
  2. Establish a framework for accountability – Ensure that you have clear policies in place to prove that you meet the required standards. Establish a culture of monitoring, reviewing and assessing your data processing procedures, aiming to minimise data processing and retention of data, and building in safeguards. Check that your staff are trained to understand their obligations. Auditable privacy impact assessments will also need to be conducted to review any risky processing activities and steps taken to address specific concerns.
  3. Embrace privacy by design – Ensure that privacy is embedded into any new processing or product that is deployed. This needs to be thought about early in the process to enable a structured assessment and systematic validation. Implementing privacy by design can both demonstrate compliance and create competitive advantage.
  4. Analyse the legal basis on which you use personal data – Consider what data processing you undertake. Do you rely on data subject consent for example, or can you show that you have a legitimate interest in processing that data that is not overridden by the interests of the data subject? Companies often assume that they need to obtain the consent of data subjects to process their data. However, consent is just one of a number of different ways of legitimising processing activity and may not be the best (eg it can be withdrawn). If you do rely on obtaining consent, review whether your documents and forms of consent are adequate and check that consents are freely given, specific and informed. You will bear the burden of proof.
  5. Check your privacy notices and policies – The GDPR requires that information provided should be in clear and plain language. Your policies should be transparent and easily accessible.
  6. Bear in mind the rights of data subjects – Be prepared for data subjects to exercise their rights under the GDPR such as the right to data portability and the right to erasure. If you store personal data, consider the legitimate grounds for its retention - it will be your burden of proof to demonstrate that your legitimate grounds override the interests of the data subjects. You may also face individuals who have unrealistic expectations of their rights.
  7. If you are a supplier to others, consider whether you have new obligations as a processor – The GDPR imposes some direct obligations on processors which you will need to understand and build into your policies, procedures and contracts. You are also likely to find that your customers will wish to ensure that your services are compatible with the enhanced requirements of the Regulation. Consider whether your contractual documentation is adequate and, for existing contracts, check who bears the cost of making changes to the services as a result of the changes in laws or regulations. If you obtain data processing services from a third party, it is very important to determine and document your respective responsibilities.
  8. Cross-border data transfers – With any international data transfers, including intra-group transfers, it will be important to ensure that you have a legitimate basis for transferring personal data to jurisdictions that are not recognised as having adequate data protection regulation. This is not a new concern, but, as failure to comply could attract a fine of up to 4% of annual worldwide turnover, the consequences of non-compliance could be severe. You may want to consider adopting binding corporate rules to facilitate intra-group transfers of data.
Legal and Regulatory Risk Note
Europe