The General Data Protection Regulation (GDPR)

The EU's General Data Protection Regulation (GDPR) is the most important change in data privacy regulation in 20 years -  we're here to help make sure that you're prepared​.
After four years of preparation and debate the GDPR was finally approved by the EU Parliament on 14 April 2016. It will enter in force 20 days after its publication in the EU Official Journal and will be directly application in all members states two years after this date. Enforcement date: 25 May 2018 - at which time those organizations in non-compliance will face heavy fines. 
The EU General Data Protection Regulation (GDPR) replaces the Data Protection Directive 95/46/EC and was designed to harmonize data privacy laws across Europe, to protect and empower all EU citizens data privacy and to reshape the way organizations across the region approach data privacy. The key articles of the GDPR, as well as information on its business impact, can be found here. ​The aim of the GDPR is to protect all EU citizens from privacy and data breaches in an increasingly data-driven world that is vastly different from the time in which the 1995 directive was established. Although the key principles of data privacy still hold true to the previous directive, many changes have been proposed to the regulatory policies; the key points of the GDPR as well as information on the impacts it will have on business can be found below.
Increased Territorial Scope (extra-territorial applicability)
Arguably the biggest change to the regulatory landscape of data privacy comes with the extended jurisdiction of the GDPR, as it applies to all companies processing the personal data of data subjects residing in the Union, regardless of the company’s location. Previously, territorial applicability of the directive was ambiguous and referred to data process 'in context of an establishment'. This topic has arisen in a number of high profile court cases. GPDR makes its applicability very clear - it will apply to the processing of personal data by controllers and processors in the EU, regardless of whether the processing takes place in the EU or not. The GDPR will also apply to the processing of personal data of data subjects in the EU by a controller or processor not established in the EU, where the activities relate to: offering goods or services to EU citizens (irrespective of whether payment is required) and the monitoring of behaviour that takes place within the EU. Non-Eu businesses processing the data of EU citizens will also have to appoint a representative in the EU. 
Penalties
Under GDPR organizations in breach of GDPR can be fined up to 4% of annual global turnover or €20 Million (whichever is greater). This is the maximum fine that can be imposed for the most serious infringements e.g.not having sufficient customer consent to process data or violating the core of Privacy by Design concepts. There is a tiered approach to fines e.g. a company can be fined 2% for not having their records in order (article 28), not notifying the supervising authority and data subject about a breach or not conducting impact assessment. It is important to note that these rules apply to both controllers and processors -- meaning 'clouds' will not be exempt from GDPR enforcement.
Consent
The conditions for consent have been strengthened, and companies will no longer be able to use long illegible terms and conditions full of legalese, as the request for consent must be given in an intelligible and easily accessible form, with the purpose for data processing attached to that consent. Consent must be clear and distinguishable from other matters and provided in an intelligible and easily accessible form, using clear and plain language. It must be as easy to withdraw consent as it is to give it.​
Data Subject Rights
Breach Notification
Under the GDPR, breach notification will become mandatory in all member states where a data breach is likely to “result in a risk for the rights and freedoms of individuals”. This must be done within 72 hours of first having become aware of the breach. Data processors will also be required to notify their customers, the controllers, “without undue delay” after first becoming aware of a data breach. 
Right to Access
Part of the expanded rights of data subjects outlined by the GDPR is the right for data subjects to obtain from the data controller confirmation as to whether or not personal data concerning them is being processed, where and for what purpose. Further, the controller shall provide a copy of the personal data, free of charge, in an electronic fromat. This change is a dramatic shift to data transparency and empowerment of data subjects.
Right to be Forgotten
Also known as Data Erasure, the right to be forgotten entitles the data subject to have the data controller erase his/her personal data, cease further dissemination of the data, and potentially have third parties halt processing of the data. The conditions for erasure, as outlined in article 17, include the data no longer being relevant to original purposes for processing, or a data subjects withdrawing consent. It should also be noted that this right requires controllers to compare the subjects' rights to "the public interest in the availability of the data" when considering such requests.
Data Portability
GDPR introduces data portability - the right for a data subject to receive the personal data concerning them, which they have previously provided in a 'commonly use and machine readable format' and have the right to transmit that data to another controller. 
Privacy by Design
Privacy by design as a concept has existed for years now, but it is only just becoming part of a legal requirement with the GDPR. At it’s core, privacy by design calls for the inclusion of data protection from the onset of the designing of systems, rather than an addition. More specifically - 'The controller shall..implement appropriate technical and organisational measures..in an effective way.. in order to meet the requirements of this Regulation and protect the rights of data subjects'. Article 23 calls for controllers to hold and process only the data absolutely necessary for the completion of its duties (data minimisation), as well as limiting the access to personal data to those needing to act out the processing. 
Data Protection Officers
Currently, controllers are required to notify their data processing activities with local DPAs, which, for multinationals, can be a bureaucratic nightmare with most Member States having different notification requirements. Under GDPR it will not be necessary to submit notifications / registrations to each local DPA of data processing activities, nor will it be a requirement to notify / obtain approval for transfers based on the Model Contract Clauses (MCCs). Instead, there will be internal record keeping requirements, as further explained below, and DPO appointment will be mandatory only for those controllers and processors whose core activities consist of processing operations which require regular and systematic monitoring of data subjects on a large scale or of special categories of data or data relating to criminal convictions and offences. Importantly, the DPO: 
Must be appointed on the basis of professional qualities and, in particular, expert knowledge on data protection law and practices
May be a staff member or an external service provider
Contact details must be provided to the relevant DPA
Must be provided with appropriate resources to carry out their tasks and maintain their expert knowledge
Must report directly to the highest level of management
Must not carry out any other tasks that could results in a conflict of interest.​
The General Data Protection Regulation is currently undergoing the Ordinary Legislative Procedure within the relevant Union legislative bodies. As the name suggests, this is the most common form of legislation creation as 89% of all proposals between 2009 and 2014 underwent this process. Currently, the GDPR has just reached an agreement in the informal negotiation stage referred to as the “Trilogues” following the adoption of the first readings by both the Parliament and the Council. The following article will outline the parties involved in the legislative process, what exactly this regulation has been through thus far, and what is yet to come.
There are three European authorities officially responsible for the legislative process, and two advisory bodies worth noting for their specific relation to data privacy:
Authoritative bodies
European Commission
The European Commission is the EU's executive body. It represents the interests of the European Union as a whole through a total of 28 commissioners, one from each member state, and 23,000 staff members. The body works on the basis of collective decision-making in order to complete its roles of proposing legislation, enforcing European law (with the help of the Court of Justice), representing the EU internationally, setting objectives, and managing EU policies and the budget.
European Parliament
The European Parliament is the only body whose members are directly elected by the citizens of the EU. It’s aim is to preserve democracy and represent the interests of the people. It holds powers over passing legislation, the EU budget, and the President and appointments of the Commission. It is made up of 751 members, elected to five year terms, with representation based upon the population of each member state.
Council of Ministers of the European Union
The Council of the Ministers of the European Union represents the governments of each member state. Its shares the power of adoption for legislation and the budget with Parliament, and also coordinates policy for the individual member states as well as foreign and security policy for the Union. Based on proposals from the Commission, the Council is the authoritative body to conclude and sign off on international agreements. The council meetings are attended by representatives (either ministers or state secretaries) who have the right to commit their countries and cast their vote.
Advisory bodies
Article 29 Data Protection Working Party
The Article 29 Working Party is and advisory body set up under the Data Privacy Directive 95/46/EC and is composed of representatives of the national data protection authorities (DPA), the EDPS and the European Commission. Its role is to advise the Commission on general data protection matters as well as laws from the EU that may affect data privacy. It also promotes the uniform application of the Data Protection Directive across the entire EU.
European Data Protection Supervisor
The European Data Protection Supervisor is the independent supervisory authority set up in 2014 by the Parliament and Council to advise EU administrations on the processing of personal data as well as supervising these bodies to ensure compliance to their own regulations. The EDPS also handles complaints and monitors new technologies related to the processing of personal data.
The ordinary legislative procedure covers the majority of what is known as secondary law, which is derived from the principles and objectives set out in EU Treaties and includes regulations, directives and decisions. It is always important to note that the GDPR is a regulation, which is immediately applicable across the Union, rather than a directive, which must be transposed into national law by each individual member state. The process begins with a proposal by the Commission, which is to be either adopted, rejected, or amended through a process of co-decision between the Parliament and the Council. The Parliament is first sent the proposal in order to make its first reading, to which is accepts or makes amendments to, before passing it on to the Council for it’s own first reading. If the council adopts the Parliament’s position, the legislation is passed, however if there are any further amendments made by the Council, all three bodies meet for the Trilogue negotiations. It is possible for a piece of legislation to continue on to a second reading by both the Parliament and the Council, and even still a final stage known as the Conciliation stage. If the legislation fails to be adopted at any stage, it can only be resurrected as a new proposal from the Commission, to repeat the entire process again.
The GDPR was initially proposed by the Commission in January of 2012, amended by the Parliament in its first reading in March of 2014, and most recently amended by the Council in its first reading in June of 2015. The first trilogue meeting was held on the 24th of June, with a stated goal from the three EU bodies to reach an agreement by the end of 2015. However, these negotiations can be extended by agreement among the leaders of each party as per the rules set out by the Joint Declaration on Practical Arrangements for the Codecision Procedure, which govern the trilogue meetings. A more robust timeline of events for the GDPR can be found here, and a discussion of the topics likely to have been the most intensely debated can be found here.
A political agreement was made on 15 December 2015, leaving the regulation to be signed in January 2016 by the Presidents and Secretaries General of both the Parliament and the Council, at which time the text will be published in the Official Journal of the European Union. The regulation will be directly binding throughout the EU following the two year grace period beginning on the date of publishing. 
Sources
http://www.europarl.europa.eu/aboutparliament/en/20150201PVL00004/Legislative-powers
http://ec.europa.eu/about/index_en.htm
http://www.europarl.europa.eu/aboutparliament/en/20150201PVL00002/Home
http://europa.eu/about-eu/institutions-bodies/council-eu/index_en.htm
https://secure.edps.europa.eu/EDPSWEB/edps/Cooperation/Art29
https://secure.edps.europa.eu/EDPSWEB/edps/EDPS
http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:ai0016
http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:l14522
http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:l14527
http://privacylawblog.fieldfisher.com/2015/unravelling-the-mysteries-of-the-gdpr-trilogues
http://www.eppgroup.eu/fr/news/Data-protection-reform-timetable
http://www.europarl.europa.eu/code/information/guide_en.pdf
http://privacylawblog.fieldfisher.com/2015/the-eu-dp-regulation-is-on-its-way-but-when
http://eur-lex.europa.eu/procedure/EN/201286
http://www.consilium.europa.eu/uedocs/cmsUpload/QC3109179ENC.pdf
http://europa.eu/rapid/press-release_IP-15-6321_en.htm?locale=en
Category: GDPR

Comments

Post new comment

The content of this field is kept private and will not be shown publicly.