Demonstrating compliance with the GDPR
Organisations must ensure security technologies and controls are in place to protect critical systems, customer information, and confidential data from being stolen on or offsite. Focussing on compliance alone is not enough, companies must also address their corporate culture, including employee attitudes about security, changing the way employees think about company information and their role in protecting it.
Despite the UK’s vote to leave the European Union, the Information Commissioners Office (ICO) has stated that the UK will still adopt the General Data Protection Regulation (GDPR), which will impose much stricter data protection penalties than the current Data Protection Act (DPA).
Are you ready for EU GDPR? Follow ICO guidance here.
And 12 steps to follow in preparation to help ensure compliance with EU GDPR.
TeleVigil Security and DPA Compliance consultants are able to offer professional and technical support regarding the use of Surveillance Systems being operated by organisations that currently have to comply with DPA. Compliance with the international information security standard ISO/IEC 27001 Information Security Management Systems (ISMS) and will help organisations demonstrate that they endeavoured to comply with the GDPR requirements. One or more schemes to provide some form of certification are likely to emerge, but it may be sometime before that happens. So for now organisations should if not already doing so, be working towards ISO 27001.
The General Data Protection Regulation (GDPR) will significantly impact businesses' approach to data privacy compliance. Businesses should start preparing now to make sure they are compliant when the GDPR comes into effect on 25 May 2018, and manage the risks accordingly. Not only do organisations have to comply with the GDPR, they also have to be able to demonstrate compliance. Here are some top tips to help you go through the compliance burden.
UK and the GDPR
The peculiarity of the GDPR is that it extends the reach of EU data protection law to non-European businesses. In particular, non-European businesses which offer goods or services to data subjects in the EU or monitor the data subjects' behaviour (provided that such behaviour takes place in the EU) will be have to comply with the GDPR despite having no office or subsidiary in the EU.
Implications of the accountability principle for businesses
The GDPR focuses on the concept of accountability whereby businesses will have to "demonstrate" compliance with the principles relating to the principles of personal data. This will involve implementing more demonstrable processes and maintaining a proactive approach. Businesses should also be prepared to respond to requests from individuals who want to exercise their rights about the processing of their personal data, businesses who are using data processors to process their commercially sensitive information, or requests and investigations from Supervisory Authorities (SAs). Failure to do so may expose businesses to high fines (up to 4% of the annual turnover or 20 million Euros, whichever is higher), damage to their reputation and/or loss of business opportunities.
Steps towards demonstrating compliance with the GDPR
No matter their size and industry sector, businesses may find it useful to put in place a GDPR compliance programme to implement and monitor their data processing activities, both in terms of their internal business, and for their clients and other third parties they deal with.
Assessment of current data privacy practices
Businesses should review their existing data privacy practices against the GDPR requirements to identify the actions they need to implement to meet the GDPR requirements by 2018. They may then want to identify the key compliance issues they need to focus on to implement their future projects involving the handling of personal data in line with their commercial objectives and market trends. This assessment should be carefully carried out as it will determine what they need to do to comply with their GDPR obligations. This may include assessing the current technologies used to deliver the services to their clients so they also help meet the GDPR requirements. Elements of effective data security management to be considered should include the following:
1 - Setting up a privacy compliance framework
2 - The role of the DPO
3 - Common data security failures, consequences and lessons to be learnt
4 - GDPR privacy principles
5 - Data privacy impact assessments
6 - Developing a risk management framework
7 - Data mapping
8 - The rights of data subjects
0 - Consent rules
10- Subject access requests
11 - The roles of and relationships between controllers and processors
12 - Dealing with third parties and data in the Cloud
13 - Demonstrating compliance with the GDPR
14 - Data breach reporting requirements
15 - Range of enforcement, regulatory and compensatory aspects of the GDPR
Creation of a data privacy governance structure
The creation of a data privacy governance structure is helpful to implement and drive the GDPR data privacy compliance programme. It needs to involve senior management at the outset of its inception to ensure it is incorporated into the board management's agenda and is fully supported throughout its lifecycle. It should set out the tasks, responsibilities and reporting lines of the individuals involved and should remain in place on a permanent basis to ensure continuous compliance with the GDPR. Businesses that already have a data protection officer (DPO) in place may ask the DPO to create such governance structure and be accountable for the overall data privacy programme. Those who do not have a DPO yet should carefully consider designating one internally or externally, whether or not they are required to do so.
Personal data inventory
Both data controllers and data processors have the obligation to maintain records of their processing activities including the personal data flows. This is a major shift from the current European data protection regime where some Member States require prior authorisation of certain personal data processing activities (e.g. for the transfer of personal data). This also means that businesses will need to have a clear understanding of their data processing activities and security systems to be able to record them all. A data mapping exercise may prove useful to achieve this. This involves creating specific tools (manual or electronic) that capture the obligations and constantly monitor and report on data processing activities. That inventory must be up-to-date and as accurate as possible as it may be subject to audit.
Creating information notices
The GDPR requires data controllers to inform the data subjects about the processing activities carried out including detailing the type of data collected, the purpose for which it is collected, how it is being used and protected, the name of the organisation processing the personal data and the data subject's rights including the right of access, to object, and to erasure (the right to be forgotten). This transparency obligation means that businesses will have to comply with their notice obligations (a list of mandatory notices is provided by the GDPR) and amend their internal policies accordingly.
The conditions for consent are harder to meet under the GDPR and businesses will have to review their current data processing activities which rely on consent, as well as their privacy policies. In addition, businesses will have to document the collection of consent. For employment purposes, specific conditions may apply as Member States are entitled to take specific measures in that area so businesses should be aware of any additional requirements in their own jurisdiction. As far as marketing activities are concerned, it remains to be seen whether the e-Privacy Directive (currently under review) will align its conditions for consent with the GDPR.
Implementation of technical and organisational measures
Both data controllers and processors have to implement appropriate technical and organisational measures to ensure that personal data processed is securely and adequately protected. Businesses should explore implementing security techniques such as privacy by design and default in their data processing activities. They should also work alongside their cybersecurity teams and other business functions to ensure that the appropriate security measures are applied and comply with their clients' requirements where appropriate. Again, there should be clear documentation of these techniques as well as regular testing and updating.
Data Protection Impact Assessments
Data Protection Impact Assessments (DPIAs) are an essential compliance tool under the GDPR. They are intended to help identify and manage risks to personal data. They are also crucial in showing the SAs that a business has done everything it can to ensure data is processed in accordance with the law.
Reporting personal data breaches
The GDPR specifically mentions that reporting personal data breaches forms part of the accountability principle. Businesses will need to create formal procedures to ensure that personal data breaches are addressed appropriately and in a timely manner to mitigate the risks to the individuals affected by the breach (e.g. misuse, loss of data, damage, rights and freedoms of the individuals). Such procedures will need to be tested to ensure they work properly. The introduction of the accountability principle means that businesses will have to do more and be seen to be doing more to comply with European data protection law. The creation of a GDPR data privacy compliance programme is the first step. Demonstrating compliance is not just about showing that a business can achieve compliance with the GDPR requirements. It has to reflect and record actual compliance.
Frequently asked questions and answers?
When is the GDPR coming into effect?
The GDPR was approved and adopted by the EU Parliament in April 2016. The regulation will take effect after a two-year transition period and, unlike a Directive it does not require any enabling legislation to be passed by government; meaning it will be in force May 2018.
In light of a uncertain 'Brexit' - I represent a data controller in the UK and want to know if I should still continue with GDPR planning and preparation?
If you process data about individuals in the context of selling goods or services to citizens in other EU countries then you will need to comply with the GDPR, irrespective as to whether or not you the UK retains the GDPR post-Brexit. If your activities are limited to the UK, then the position (after the initial exit period) is much less clear. The UK Government has indicated it will implement an equivalent or alternative legal mechanisms. Our expectation is that any such legislation will largely follow the GDPR, given the support previously provided to the GDPR by the ICO and UK Government as an effective privacy standard, together with the fact that the GDPR provides a clear baseline against which UK business can seek continued access to the EU digital market. (Ref: http://www.lexology.com/library/detail.aspx?g=07a6d19f-19ae-4648-9f69-44ea289726a0)
Who does the GDPR affect?
The GDPR not only applies to organisations located within the EU but it will also apply to organisations located outside of the EU if they offer goods or services to, or monitor the behaviour of, EU data subjects. It applies to all companies processing and holding the personal data of data subjects residing in the European Union, regardless of the company’s location.
What are the penalties for non-compliance?
Organizations can be fined up to 4% of annual global turnover for breaching GDPR or €20 Million. 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.
What constitutes personal data?
Any information related to a natural person or ‘Data Subject’, that can be used to directly or indirectly identify the person. It can be anything from a name, a photo, an email address, bank details, posts on social networking websites, medical information, or a computer IP address.
What is the difference between a data processor and a data controller?
A controller is the entity that determines the purposes, conditions and means of the processing of personal data, while the processor is an entity which processes personal data on behalf of the controller.
Do data processors need 'explicit' or 'unambiguous' data subject consent - and what is the difference?
The conditions for consent have been strengthened, as companies will no longer be able to utilise 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 - meaning it must be unambiguous. 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. Explicit consent is required only for processing sensitive personal data - in this context, nothing short of “opt in” will suffice. However, for non-sensitive data, “unambiguous” consent will suffice.
What about Data Subjects under the age of 16?
Parental consent will be required to process the personal data of children under the age of 16 for online services; member states may legislate for a lower age of consent but this will not be below the age of 13.
What is the difference between a regulation and a directive?
A regulation is a binding legislative act. It must be applied in its entirety across the EU, while a directive is a legislative act that sets out a goal that all EU countries must achieve. However, it is up to the individual countries to decide how. It is important to note that the GDPR is a regulation, in contrast the the previous legislation, which is a directive.
Does my business need to appoint a Data Protection Officer (DPO)?
DPOs mustbe appointed in the case of: (a) public authorities, (b) organizations that engage in large scale systematic monitoring, or (c) organizations that engage in large scale processing of sensitive personal data (Art. 37). If your organization doesn’t fall into one of these categories, then you do not need to appoint a DPO.
How does the GDPR affect policy surrounding data breaches?
Proposed regulations surrounding data breaches primarily relate to the notification policies of companies that have been breached. Data breaches which may pose a risk to individuals must be notified to the DPA within 72 hours and to affected individuals without undue delay.
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