Data security – General Data Protection Regulation – Ensuring Compliance

The General Data Protection Regulation (GDPR) replaced the existing Data Protection Act with effect from 25 May.

TThe GDPR requires all organisations that deal with individuals living in an EU member state to protect the personal information belonging to those individuals and to have verified proof of such protection. Failure to comply with the regulation will result in significant fines.

Whilst there are similarities between the Data Protection Act and the GDPR, there are some new and different requirements that all businesses need to be aware of. This factsheet will help you consider whether you have carried out the steps to ensure you have adequately prepared and are compliant with the regulations.

We have also produced a related factsheet entitled ‘Data Security – General Data Protection Regulation’, which covers the principles behind the regulations.

Summary of new and modified requirements

Here we summarise the new/modified requirements of the GDPR in comparison to the Data Protection Act.

There are perhaps a number of overriding principles and key words within the GDPR. These include transparency, accountability, consent, compliance and privacy by design. Some of the areas where these impact, include:

Controllers and processors

There are some specific legal obligations for controllers and processors.

Controllers

Must specifically ensure that contracts with processors comply with the GDPR. Controllers shall also be responsible for, and be able to demonstrate, compliance with the GDPR data protection principles – including appropriate documentation.

Processors

Are required to document records of personal data and processing activities, and are also legally responsible and liable for any security breaches.

Privacy notices

The GDPR promotes transparency over processing by way of a privacy notice encompassing (amongst other things) details of the controller, the source of the data, recipients of the data, data transfers made outside the EU, and the retention period of the data.

Consent

Consent must be freely given, specific, informed and unambiguous. Positive consent can no longer be inferred from silence, inactivity or the use of pre-ticked boxes.

Children’s personal data and consent

There are special provisions relating to the consent and processing of children’s personal data.

Accountability and governance

Organisations need to have ‘comprehensive but proportionate’ governance measures. For many organisations this is likely to mean more policies and procedures. And, for larger organisations (over 250 employees), this also means assigning or appointing a Data Protection Officer (DPO).

Subject Access Request (SAR)

The time to respond to a SAR is now 30 days, and it must be provided free of charge unless the request is unfounded or excessive.

Notification of breaches

Breaches must be reported within 72 hours to the relevant supervisory/regulatory authority.

Data portability

This is a new right under the GDPR, and allows an individual to request a machine readable copy of their personal data where processing is carried out by automated means.

Summary of key preparatory steps

The ICO have produced a twelve step checklist to help organisations get themselves ready for compliance.

1. Awareness

The decision makers and key people in the organisation need to be made aware that law is changing. They need to appreciate the impact, and quantify and allocate resources to ensure compliance.

2. Information held

What personal data is held, where it came from and who it is shared with should be documented. It may be necessary to arrange for an information audit to be performed.

3. Communicating privacy information

Existing privacy notices should be reviewed, and, if necessary, updated. Enhanced disclosure may be necessary to take into account all the new rights of individuals. If a privacy notice(s) does not exist, then one will need to be constructed.

4. Individuals’ rights

Review the eight key rights individuals have under the GDPR, and whether existing procedures and policies cover all these rights.

5. Subject access requests

Update subject access rights procedures to take into account the rules.

6. Lawful basis for processing personal data

The lawful basis for processing activity should be documented and communicated in the privacy notice(s) – also see three above.

7. Consent

Consent under the GDPR relies on a positive and transparent opt-in. Existing consent mechanisms and procedures may need to be updated.

8. Children

Children’s consent and children’s personal data is given special protection under the GDPR. In some cases, a parent or guardian may be required to give consent.

9. Breaches

The right procedures need to be in place to detect, report and investigate a breach of personal data security. All organisations must report breaches to the ICO (as well as, perhaps, their own regulatory body).

10. Privacy by design

This is a legal requirement of the GDPR. In particular, an Impact Assessment should be performed even where it is not mandatory.

11. Data Protection Officer

Someone in the organisation should be designated the responsibility for compliance. A Data Protection Officer is formally required in certain circumstances.

12. International

If the organisation operates in more than one EU member state, a lead data protection supervisory authority needs to be nominated. This is usually the country in which significant decisions are made about processing activities.

Documentation

Documentation of the processing activities carried out by the organisation is required. Documentation should cover the purposes of processing data, data sharing and data retention policies and procedures.

A good starting point might be the firms’ existing Data Protection Act annual registration form. However, this is only a starting point – the GDPR requirements for documentation are much more explicit than under the Data Protection Act.

Data controllers and data processors have their own separate obligations, and these are covered in more detail here.

There are limited exemptions for firms employing <250 employees – and in this case documentation is only required for processing activities that:

• are not occasional,
• are likely to impact the rights and freedoms of individuals, and
• involve special category data or criminal conviction and offence data.

A more detailed step by step guide on how to proceed with the documentation process can be found using the url above.

Other laws and regulations

As well as the necessity to comply with the GDPR, there are various other Acts and regulations in the UK which have a bearing on data security. These include:

• Privacy and Electronic Communications Regulations (PECR) 2003 – which cover ‘spam’ and mass-marketing mailshots. Regulations under the PECR are also issued from time to time. For example, regulations on the use of cookies on websites, and in 2016 to require anyone making a marketing call to display their number.
• Copyright Design and Patents Act – amended in 2002 to cover software theft.
• There may be other IT standards and regulations applicable to your business sector: for example, companies processing credit card transactions need to ensure compliance with the Payment Card Industry Data Security Standards (PCI DSS).

Sources and links

• ICO home page for organisations
• EU GDPR portal – www.eugdpr.org
• ICO GDPR micro site