This post provides an update as to the current status of official GDPR-related guidance. With a little under a year remaining until the European Union’s General Data Protection Regulation (GDPR) becomes enforceable, companies are on the lookout for any interpretive guidance from EU or member state authorities that will help them focus their compliance efforts. The EU’s Article 29 Working Party (WP29) thus far has adopted guidelines relating to data portability, the identification of lead supervisory authorities, and the role of data protection officers, and has issued draft guidelines on data protection impact assessments (DPIAs, also known as “Privacy Impact Assessments”). Additionally, EU member states – led by Germany –are beginning to pass laws meant to complement the GDPR and legislate in areas the GDPR leaves to the member states. These laws also provide some clues as to how the GDPR will take effect on a country-by-country basis.
Guidance from the Article 29 Working Party
As mentioned above, in December 2016 the WP29 published draft guidelines on three new topics the GDPR introduced into EU law: data portability, the “one stop shop” system designed to facilitate the identification of lead supervisory authorities, and the role of data protection officers. The WP29 ultimately adopted revised versions of these guidelines in April 2017. The revised guidelines addressed a few important issues the draft versions left unaddressed or unclear, and included the following points, among others:
- A recommendation that a company’s data protection officer be located in Europe;
- Additional emphasis on the WP29’s position that, for purposes of data portability, a user’s “personal data” includes information gathered based on the data subject’s activity, “such as raw data processed by a smart meter or other types of connected objects, activity logs, history of website usage or search activities;”
- A characterization of a company’s “main establishment,” for “one stop shop” purposes, as not only “the place where decisions about the purposes and means of the processing of personal data are taken,” but as the “place [that] has the power to have such decisions implemented.”
The WP29 also published draft guidelines on DPIAs in April 2017. Article 35 of the GDPR requires controllers to carry out a DPIA “[w]here a type of processing in particular using new technologies, and taking into account the nature, scope, context and purposes of the processing, is likely to result in a high risk to the rights and freedoms of natural persons.” Accordingly, these draft guidelines focus largely on providing advice about types of processing that are “likely to result in a high risk to the rights and freedoms of natural persons,” and provide a list of factors a controller should consider in making the determination as to whether a DPIA is needed. The list suggests that controllers consider, among other things, whether their processing entails “[e]valuation or scoring” (which would include, for example, a bank screening its customers against a credit reference database), the processing of sensitive data, or whether the data being processed will be transferred out of the EU to a country with less-stringent data protection laws (which would include, in the eyes of the EU authorities, the US). The guidelines state “a[s] a rule of thumb” that a processing operation that implicates more than two of these factors will require a DPIA, while processing that implicates fewer than two of these factors will not, although the document also allows that in some cases, a processing operation that touches upon only one of these factors nevertheless may still pose enough of a risk to warrant a DPIA. The guidelines also suggest that a DPIA of any processing activity be re-assessed every three years, and that controllers should consider making available parts (if not all) of the DPIA to the public.
The public comment period for these draft DPIA guidelines closed in May, so the WP29 should be adopting a finalized set of guidelines in the coming months. In the meantime, the WP29 has committed to providing additional GDPR guidance over the next year, although the prospective publication dates remain unclear at this point.
Guidance from the UK’s Information Commissioner’s Office (ICO)
Not content to wait for the WP29’s guidelines on consent, the UK’s ICO published its own draft guidance on the subject in March of 2017. The draft guidance helpfully spells out the differences between the current Directive’s conception of consent and the GDPR’s expectations related to the same. Specifically, the ICO guidance stresses that under the GDPR, companies will need to revise their consent mechanisms in order to obtain “more granular” consent. In other words, a company must provide data subjects with specific consent options for various types of processing. Furthermore, because consent must be informed in order to be considered valid, the company must provide data subjects with notice as to the nature of the different types of processing, including the extent of the processing activities and the purposes of the processing.
The guidance also emphasizes the importance of adopting “simple easy-to-access ways for people to withdraw consent.” The guidelines advise that the withdrawal of consent should be “an easily accessible one-step process” that makes it just as easy for the data subject to withdraw consent as it was for the data subject to give consent. One example of such an “easily accessible” process, at least for any customers that gave consent via an online form, would be to provide another online form for withdrawing consent that is available from a link at the bottom of every webpage.
Although the UK currently is in the process of negotiating its Brexit from the EU, the UK likely will retain many of the GDPR’s provisions. Therefore, despite the fact that the UK may no longer be an EU member state a few years from now, the ICO’s guidance still may be considered helpful.
New Data Protection Law in Germany
At the end of April 2017, the German Parliament passed a new Federal Data Protection Act (formally known as the Bundesdatenschutzgesetz, and typically abbreviated as the BDSG). Although the GDPR is directly applicable in the EU member states and does not require any implementing legislation in order to become law, the BDSG is meant to ensure that German law is in line with the GDPR’s requirements. Additionally, the GDPR allows the member states to legislate in particular areas, which will lead to some legal variations in privacy law across the EU. The BDSG therefore also implements some of those allowable variations into German law and helpfully illuminates the legal areas in which some of the EU member states will diverge from one another once the GDPR becomes enforceable. For example, the BDSG leaves in place provisions from the previous BDSG (which had been in place in Germany for decades) regarding employee data protection, which is an area the GDPR allows the member states to regulate themselves.
It is worth emphasizing that the BDSG is a law, rather than a set of guidance from regulators, and therefore companies operating in Germany should consider consulting with local counsel in order to understand how the new law may impact their operations in the country.