The General Data Protection Regulation (GDPR) is expected to be introduced into the UK in mid-2018.
Many of the principles in the new legislation are much the same as those in the current Data Protection Act. If you are complying properly with the current law, then you have a strong starting point to build from. But there are important new elements, and some things will need to be done differently.
The Information Commissioner’s Office (ICO) has produced their first data protection guidance in relation to the GDPR. This is in the form of a 12 step guide to take now in preparation for the changes scheduled in 2018. Below is a summary of the ICO’s 12 step preliminary advice.
Awareness
You should make sure that the decision makers and key people in your organisation are aware that the law is changing to GDPR. It would be useful to start by looking at your organisation’s risk register, if you have one.
The GDPR’s two year lead in period gives companies time as the GDPR may have significant resource implications especially for larger, more complex organisations. Compliance may therefore be difficult if you leave your preparations until the last minute.
Information You Hold
You should document what personal data you hold, where it came from and who you share it with. You may need to organise an information audit, across the organisation, or within particular business areas.
It is good practice to start documenting the data you hold. Doing this will also help you to comply with the GDPR’s accountability principle, which requires organisations to be able to show how they comply with the data protection principles, for example by having effective policies and procedures in place.
Communicating Privacy Information
You should review your current privacy policies and put a plan in place for making any necessary changes in time for GDPR implementation.
When you collect personal data you currently have to give people certain information (usually through your privacy policy), such as your identity and how you intend to use their information. Under the GDPR there are some additional things you will have to tell people. Such as, you will need to explain your legal basis for processing the data, your data retention periods and that individuals have a right to complain to the ICO if they think there is a problem with the way you are handling their data.
Note that the GDPR requires the information to be provided in concise, easy to understand and clear language. This should impact the content of your privacy policy.
Individuals’ Rights
On the whole, the rights individuals will enjoy under the GDPR are the same as those under the DPA but with some significant differences. The right to data portability is new. This is an enhanced form of subject access where you have to provide the data electronically and in a commonly used format.
If you are geared up to give individuals their rights now, then the transition to the GDPR should be relatively straightforward. This is a good time to check your procedures and to work out how you would react if someone asks to have their personal data deleted, for example. Would your systems help you to locate and delete the data? Who will make the decisions about deletion? These questions should be considered in the lead up to GDPR implementation.
Subject Access Requests
The rules for dealing with subject access requests will change under the GDPR. In most cases you will not be able to charge for complying with a request and normally you will have just a month to comply, rather than the current 40 days.
You should update your procedures and plan how you will handle requests within the new timescales and provide any additional information.
If you want to refuse a request, you will need to have policies and procedures in place to demonstrate why the request meets these criteria.
Legal Basis for Processing Personal Data
Many organisations will not have thought about their legal basis for processing personal data. This will be different under the GDPR because some individuals’ rights will be modified depending on your legal basis for processing their personal data. One clear example is that people will have a stronger right to have their data deleted where you use consent as your legal basis for processing.
It should be possible to look at the various types of data processing you carry out and to identify your legal basis for doing so. Again, you should document this in order to help you comply with the GDPR’s ‘accountability’ requirements.
Consent
You should review how you are seeking, obtaining and recording consent and whether you need to make any changes.
Consent has to be a positive indication of agreement to personal data being processed, it cannot be inferred from silence, pre-ticked boxes or inactivity. If you rely on individuals’ consent to process their data, you must make sure it will meet the standards required by the GDPR. If not, you should alter your consent mechanisms or find an alternative to consent. Note that consent has to be verifiable and that individuals generally have stronger rights where you rely on consent to process their data.
Children
You should start thinking about putting systems in place to verify individuals’ ages and to gather parental or guardian consent for the data processing activity.
For the first time, the GDPR will bring in special protection for children’s personal data. If your organisation collects information about children (in the UK this will probably be defined as anyone under 13) then you will need a parent or guardian’s consent in order to process their personal data lawfully. This could have significant implications if your organisation aims services at children and collects their personal data.
Data Breaches
Some organisations are already required to notify the ICO (and possibly some other bodies) when they suffer a personal data breach. However, the GDPR will bring in a breach notification duty across the board. Not all breaches will have to be notified to the ICO, only ones where the individual is likely to suffer some form of damage, such as through identity theft or a confidentiality breach.
You should start now to make sure you have the right procedures in place to detect, report and investigate a personal data breach. This could involve assessing the types of data you hold and documenting which ones would fall within the notification requirement if there was a breach.
Data Protection by Design and Data Protection Impact Assessments
You should familiarise yourself now with the guidance the ICO has produced on Privacy Impact Assessments (PIAs) (or DPIA as the GDPR terms it) and work out how to implement them in your organisation. The ICO guidance shows how DPIAs can link to other organisational processes such as risk management and project management. You should start to assess the situations where it will be necessary to conduct a DPIA. Who will do it? Who else needs to be involved? Will the process be run centrally or locally?
Note that you do not always have to carry out a DPIA. A DPIA is required in high-risk situations, for example where a new technology is being deployed or where a profiling operation is likely to significantly affect individuals.
Data Protection Officers
The GDPR will require some organisations to designate a Data Protection Officer (DPO), for example public authorities or ones whose activities involve the regular and systematic monitoring of data subjects on a large scale. The important thing is to make sure that someone in your organisation, or an external data protection advisor, takes proper responsibility for your data protection compliance and has the knowledge, support and authority to do so effectively. Therefore you should consider now whether you will be required to designate a DPO and, if so, to assess whether your current approach to data protection compliance will meet the GDPR’s requirements.
International
If your organisation operates internationally, you should determine which data protection supervisory authority you come under.
It would be helpful for you to map out where your organisation makes its most significant decisions about data processing. This will help to determine your ‘main establishment’ and therefore your lead supervisory authority.
The GDPR leaves a lot for organisations to consider in the lead up to its implementation. It is best to get ahead of the game here and leave yourself plenty of time to incorporate any new changes into your organisation’s current data protection compliance procedures.
For any further information on this please contact Daniel Geller at dgeller@foxwilliams.com.
Daniel is an associate lawyer in the commerce and technology department of law firm Fox Williams LLP, London
