The EU General Data Protection Regulation (“GDPR”) will come into direct legal effect in all EU member states, including Ireland, on 25 May 2018.
It is important for all private and public sector companies that they now take steps to bring themselves into compliance with the GDPR in advance of May 2018.
In that regard, we are leading experts in the area of data protection law and we can help you come into compliance. We have advised private and public sector companies on the full spectrum of data protection compliance and enforcement issues. We have also acted in many of the leading data protection cases to come before the Courts. A number of our partners are CIPP/E certified (Certified International Privacy Professional – Europe). Our Data, Privacy and Technology team is ready to assist you in the run up to May 2018.
The following helpful guide has been published by the Office of the Data Protection Commissioner and outlines 12 steps to prepare for May 2018.
1. Becoming Aware It is imperative that key personnel in your organisation are aware that the law is changing to the GDPR, and start to factor this into their future planning. They should start to identify areas that could cause compliance problems under the GDPR. Initially, data controllers should review and enhance their organisation’s risk management processes, as implementing the GDPR could have significant implications for resources; especially for more complex organisations. Any delay in preparations may leave your organisation susceptible to compliance issues following the GDPR’s introduction.
2. Becoming Accountable Make an inventory of all personal data you hold and examine it under the following headings:
- Why are you holding it?
- How did you obtain it?
- Why was it originally gathered?
- How long will you retain it?
- How secure is it, both in terms of encryption and accessibility?
- Do you ever share it with third parties and on what basis might you do so?
This is the first step towards compliance with the GDPR’s accountability principle, which requires organisations to demonstrate (and, in most cases, document) the ways in which they comply with data protection principles when transacting business. The inventory will also enable organisations to amend incorrect data or track third-party disclosures in the future, which is something that they may be required to do.
3. Communicating with Staff and Service Users Review all current data privacy notices alerting individuals to the collection of their data. Identify any gaps that exist between the level of data collection and processing your organisation engages in, and how aware you have made your customers, staff and services users of this fact. If gaps exist, set about redressing them using the criteria laid out in ‘2: Becoming Accountable’ as your guide.
Before gathering any personal data, current legislation requires that you notify your customers of your identity, your reasons for gathering the data, the use(s) it will be put to, who it will be disclosed to, and if it’s going to be transferred outside the EU.
Under the GDPR, additional information must be communicated to individuals in advance of processing, such as the legal basis for processing the data, retention periods, the right of complaint where customers are unhappy with your implementation of any of these criteria, whether their data will be subject to automated decision making and their individual rights under the GDPR. The GDPR also requires that the information be provided in concise, easy to understand and clear language.
4. Personal Privacy Rights You should review your procedures to ensure they cover all the rights individuals have, including how you would delete personal data or provide data electronically and in a commonly used format.
Rights for individuals under the GDPR include:
- subject access
- to have inaccuracies corrected
- to have information erased
- to object to direct marketing
- to restrict the processing of their information, including automated decision-making data portability
On the whole, the rights individuals will enjoy under the GDPR are the same as those under the Acts, but with some significant enhancements. Organisations who already apply these principles will find the transition to the GDPR less difficult.
Review your current procedures. How would your organisation react if it received a request from a data subject wishing to exercise their rights under the GDPR?
- How long to locate (and correct or delete) the data from all locations where it is stored?
- Who will make the decisions about deletion?
- Can your systems respond to the data portability provision of the GDPR, if applicable where you have to provide the data electronically and in a commonly used format?
5. How will Access Requests change? You should review and update your procedures and plan how you will handle requests within the new timescales. (There should be no undue delay in processing an Access Request and, at the latest, they must be concluded within one month).
The rules for dealing with subject access requests will change under the GDPR. In most cases, you will not be able to charge for processing an access request, unless you can demonstrate that the cost will be excessive. The timescale for processing an access request will also shorten, dropping significantly from the current 40 day period. Organisations will have some grounds for refusing to grant an access request. Where a request is deemed manifestly unfounded or excessive, it can be refused. However, organisations will need to have clear refusal policies and procedures in place, and demonstrate why the request meets these criteria.
You will also need to provide some additional information to people making requests, such as your data retention periods and the right to have inaccurate data corrected. If your organisation handles a large number of access requests, the impact of the changes could be considerable. The logistical implications of having to deal with requests in a shorter timeframe and provide additional information will need to be factored into future planning for organisations. It could ultimately save your organisation a great deal of administrative cost if you can develop systems that allow people to access their information easily online.
6. What we mean when we talk about a ‘Legal Basis’ You should look at the various types of data processing you carry out, identify your legal basis for carrying it out and document it. This is particularly important where consent is relied upon as the sole legal basis for processing data. Under the GDPR, individuals will have a stronger right to have their data deleted where customer consent is the only justification for processing. You will have to explain your legal basis for processing personal data in your privacy notice and when you answer a subject access request.
For government departments and agencies, there has been a significant reduction in the number of legal bases they may rely on when processing data. It will no longer be possible to cite legitimate interests. Instead, there will be a general necessity to have specific legislative provisions underpinning one or more of the methods organisations use to process data. All organisations need to carefully consider how much personal data they gather, and why. If any categories can be discontinued, do so. For the data that remains, consider whether it needs to be kept in its raw format, and how quickly you can begin the process of anonymisation and pseudonymisation.
7. Using customer consent as a grounds to process data If you do use customer consent when you record personal data, you should review how you seek, obtain and record that consent, and whether you need to make any changes. Consent must be ‘freely given, specific, informed and unambiguous’. Essentially, your customer cannot be forced into consent, or be unaware that they are consenting to processing of their personal data. They must know exactly what they are consenting to, and there can be no doubt that they are consenting. Obtaining consent requires a positive indication of agreement – it cannot be inferred from silence, pre-ticked boxes or inactivity.
If consent is the legal basis relied upon to process personal data, you must make sure it will meet the standards required by the GDPR. If it does not, then you should amend your consent mechanisms or find an alternative legal basis. Note that consent has to be verifiable, that individuals must be informed in advance of their right to withdraw consent and that individuals generally have stronger rights where you rely on consent to process their data. The GDPR is clear that controllers must be able to demonstrate that consent was given. You should therefore review the systems you have for recording consent to ensure you have an effective audit trail.
8. Processing Children’s Data If the work of your organisation involves the processing of data from underage subjects, you must ensure that you have adequate systems in place to verify individual ages and gather consent from guardians.
The GDPR introduces special protections for children’s data, particularly in the context of social media and commercial internet services. The state will define the age up to which an organisation must obtain consent from a guardian before processing a child’s data. It should be noted that consent needs to be verifiable, and therefore communicated to your underage customers in language they can understand.
9. Reporting data breaches You should make sure you have the right procedures in place to detect, report and investigate a personal data breach.
Some organisations are already required to notify the DPC when they incur a personal data breach. However, the GDPR will bring in mandatory breach notifications, which will be new to many organisations. All breaches must be reported to the DPC, typically within 72 hours, unless the data was anonymised or encrypted. In practice this will mean that most data breaches must be reported to the DPC. Breaches that are likely to bring harm to an individual – such as identity theft or breach of confidentiality – must also be reported to the individuals concerned. Now is the time to assess the types of data you hold and document which ones which fall within the notification requirement in the event of a breach. Larger organisations will need to develop policies and procedures for managing data breaches, both at central or local level.
It is worth noting that a failure to report a breach when required to do so could result in a fine, as well as a fine for the breach itself.
10. Data Protection Impact Assessments (DPIA) and Data Protection by design and default A DPIA is the process of systematically considering the potential impact that a project or initiative might have on the privacy of individuals. It will allow organisations to identify potential privacy issues before they arise, and come up with a way to mitigate them. A DPIA can involve discussions with relevant parties/stakeholders. Ultimately such an assessment may prove invaluable in determining the viability of future projects and initiatives. The GDPR introduces mandatory DPIAs for those oganisations involved in high-risk processing; for example where a new technology is being deployed, where a profiling operation is likely to significantly affect individuals, or where there is large scale monitoring of a publicly accessible area.
Where the DPIA indicates that the risks identified in relation to the processing of personal data cannot be fully mitigated, data controllers will be required to consult the DPC before engaging in the process. Organisations should now start to assess whether future projects will require a DPIA and, if the project calls for a DPIA, consider:
- Who will do it?
- Who else needs to be involved?
- Will the process be run centrally or locally?
It has always been good practice to adopt privacy by design as a default approach; privacy by design and the minimisation of data have always been implicit requirements of the data protection principles. However, the GDPR enshrines both the principle of ‘privacy by design’ and the principle of ‘privacy by default’ in law. This means that service settings must be automatically privacy friendly, and requires that the development of services and products takes account of privacy considerations from the outset.
11. Data Protection Officers The GDPR will require some organisations to designate a Data Protection Officer (DPO). Organisations requiring DPOs include public authorities, organisations whose activities involve the regular and systematic monitoring of data subjects on a large scale, or organisations who process what is currently known as sensitive personal data on a large scale.
The important thing is to make sure that someone in your organisation, or an external data protection advisor, takes 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.
12. International Organisations and the GDPR The GDPR includes a ‘one-stop-shop’ provision which will assist those organisations which operate in many EU member states. Multinational organisations will be entitled to deal with one Data Protection Authority, referred to as a Lead Supervisory Authority (LSA) as their single regulating body in the country where they are mainly established. That Data Protection Authority will then become the LSA when regulating all data protection matters involving that organisation, although it will be obliged to consult with other concerned Data Protection Authorities which are concerned in relation to certain matters.
In general the main establishment of an organisation is determined according to where the organisation has its main administration, or where decisions about data processing are made. However, it would be helpful for you to map out where your organisation makes its most significant decisions about data processing, as this will help to determine your main establishment and therefore your LSA.