With less than six months to go until the General Data Protection Regulation (GDPR) comes into force on 25 May 2018, trustees of occupational pension schemes need to ensure that they are on track with their preparations to become GDPR-compliant. In this Pensions Alert we provide a reminder of the key action points for trustees and the importance of ensuring that this issue is on trustees' agendas now.
The GDPR will apply in the UK from 25 May 2018 without the need for implementing national legislation. Whilst many of the main concepts and principles of the GDPR are similar to those in the current data protection legislation, there are also some significant differences including: a wider definition of personal data; a higher standard for consent as a lawful basis for processing; more extensive requirements to provide information to data subjects about the processing of their data; more extensive provision about the content of contracts between controllers and processors; a new principle of accountability which requires the data controller to keep records and be able to demonstrate compliance with the principles relating to processing; duties to notify the relevant supervisory authority (in the UK, this is the Information Commissioner's Office) of certain data breaches; and the potential for significantly higher financial penalties to be imposed in relation to breaches. We provided an overview of some of the key differences in our previous Pensions Alert on the GDPR.
A Data Protection Bill (Bill) is currently progressing through Parliament which includes some provisions which supplement the GDPR. For example, the GDPR provides that special categories of personal data (referred to as sensitive personal data in the current legislation), such as information concerning health, can only be processed if one of a list of conditions is met. This list includes that the data subject has given explicit consent. Some of the other alternative conditions in the list allow national law to set out the detail of when special categories of personal data can be processed, and the Bill contains the relevant provisions of UK law. The Bill currently makes very limited provision specifically permitting the processing of special categories of personal data by occupational pension schemes on the basis of one of these alternative conditions. As the Bill is still progressing through Parliament, it could be subject to change before it becomes law.
Guidance from the Information Commissioner's Office (ICO)
The ICO has already published some guidance in relation to the GDPR and in our previous Pensions Alert we reported on the ICO's Overview of the GDPR. The ICO has recently replaced its overview document with its Guide to the GDPR which currently contains similar content to the overview but with some sections having been expanded. The Guide is not yet a finished product but rather is a framework in to which the ICO will build upcoming GDPR guidance.
In terms of guidance still to come:
- The ICO is expected to finalise its guidance on contracts and liabilities between controllers and processors by the end of 2017
- European-wide guidelines on consent (one of the lawful bases for processing) are expected in December, after which the ICO will finalise its UK-specific guidance on this issue
- Guidance from the ICO on consent and other lawful bases of processing is expected early next year
- In relation to certain issues where European-wide guidelines are already available, such as Data Protection Impact Assessments, the ICO is considering whether it can provide any further detail over and above those guidelines
Key action points
Whilst the terms of the Data Protection Bill are not yet finalised and further guidance is still awaited from the ICO, this does not mean that trustees should wait to take action in relation to the GDPR. Instead they should take action now but bear in mind that in some areas the law and guidance is still developing. Key action points for trustees to consider include the following.
- Data mapping - review what data is held, where it came from, how it is managed, who it is shared with and how long it is held
- Contact administrators, advisers and other third parties who process data on the trustees' behalf to ask them what data they hold and what steps they are taking to ensure compliance with the GDPR
- Consider and record the lawful basis of all processing activity. Lawful bases for processing personal data under the GDPR include consent, compliance with legal obligations to which the data controller is subject and the legitimate interests of the data controller. Where the data that is held is a special category of personal data (such as information in relation to ill health), check that a relevant condition is met to permit that processing. As noted above, the GDPR brings with it a much higher standard for consent than is currently applied
- Review policies on data retention and document conclusions on the appropriate period for retention of data, bearing in mind that the GDPR provides that personal data should be kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the data are processed
- Review and negotiate updates to contracts with third parties, such as administrators, to ensure that they contain the provisions which the GDPR requires to be in contracts between data controllers and processors. Trustees should also consider whether other provisions of the contracts need to be amended, for example, indemnities and liability caps in light of the penalties that can apply under the GDPR
- Review and update the notices sent to data subjects to ensure that they contain the information required by the GDPR and meet the provisions on transparency including that the information is provided in a concise, transparent, intelligible and easily accessible form, using clear and plain language. It must also be provided free of charge
- Prepare relevant policies and documents to demonstrate compliance in accordance with the GDPR principle of accountability and the requirements on records of processing
- Put in place a process and policy in relation to identifying, assessing and, where necessary, reporting breaches
There is a lot for trustees to do and less than six months to complete these activities. If trustees have not yet started their preparations they should therefore do so without delay. Trustees who have already started their preparations should check that they are on track with their project plans. There may now only be one or two full trustee board meetings before 25 May 2018 and therefore trustees should consider whether to establish a GDPR sub-committee to deal with these issues in between trustee board meetings in order to ensure that work on GDPR compliance can be completed on time.