GDPR: Where You Are, Where You’re Headed, and Legislative Elements
September 24, 2018
GDPR: A Refresher
- The essence of GDPR is about keeping people informed about what data you have and how you are using it
- Best practice is to request consent for data processing rather than rely on legitimate interest – be prepared to evidence this (implied or specific)
- The key to reliance on legitimate interest is to establish the subject should ‘expect’ it and that clear notification was given
- Data shouldn’t be kept longer than needed and must be able to justify legitimate need for data (per a specific retention policy and/ or legal grounds such as a contractual relationship or business correspondence)
- Consider time, storage and purpose for all data types
- Be particularly cautious of back-ups/ archives that may contain copy ID docs or other data types no longer needed – ensure these do not become ticking time bombs!
- If a contractual relationship, define when the relationship is “over” and start data retention periods at this point until limitations expire
- Privacy laws must be fully considered in addition to GDPR
- Need to rely on one of six lawful bases for data processing, of which explicit consent is one and so it is not required for all instances
- When appointing a DPO, demonstrate sufficient knowledge, resource, no conflicts of interest and independence (not afraid of bringing bad news)
- Can be an individual, a body, part of a role or outsourced
- Document the review and decision process of your compliance committee/ forum
- No prohibition on buying data but check the data has been lawfully provided for your intended use
- Contracts with 3rd parties should have an addendum/ question checklist confirming compliance and depending on answers may want evidence/ to audit
Key Next Steps Post GDPR Implementation
- Continue to clean up data archives/ back-ups (particularly non-digital elements that may have been missed)
- Embed new practices and re-enforce with messaging on dos and don’ts
- Be prepared to identify, report and react quickly to any data breaches
- Monitor standards (including certification schemes) for company phones/ laptops with an associated audit schedule
- Ensure you have the following templates/ standard docs in your basic GDPR toolkit
- Straightforward, easy to access guidance for the front line
- A standard statement on data use for marketing
- A consent approach/ template
- A data record that is maintained daily
- Addendum to existing agreements/ contracts
- Data breach process and templates
Key Elements of the Legislation (per ICO Guidance)
What Data is Covered – Personal Data (Article 2 & 4)
Personal data only includes information relating to natural persons (i.e. not companies/ the deceased) who:
- can be identified or who are identifiable, directly from the information in question; or
- who can be indirectly identified from that information in combination with other information.
… identifiable data includes but is not restricted to: name; identification number; location data; and online identifier (e.g. IP)
Pseudonymised data can help reduce privacy risks by making it more difficult to identify individuals, but it is still personal data. If personal data can be truly anonymised, then the anonymised data is not subject to the GDPR.
How Can Data Be Processed – The 7 Principles (Article 5)
- Lawfulness, fairness and transparency – processed lawfully, fairly and in a transparent manner in relation to individuals
- Purpose limitation – collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes shall not be considered to be incompatible with the initial purposes
- Data minimisation – adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed
- Accuracy – accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay
- Storage limitation – kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed; personal data may be stored for longer periods insofar as the personal data will be processed solely for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes subject to implementation of the appropriate technical and organisational measures required by the GDPR in order to safeguard the rights and freedoms of individuals
- Integrity and confidentiality (security) – processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures
- Accountability – The controller shall be responsible for, and be able to demonstrate compliance with, paragraph 1
What are Lawful Basis for Processing Data (Article 6)
- Consent – the individual has given clear consent for you to process their personal data for a specific purpose.
- Contract – the processing is necessary for a contract you have with the individual, or because they have asked you to take specific steps before entering into a contract.
- Legal obligation – the processing is necessary for you to comply with the law (not including contractual obligations).
- Vital interests – the processing is necessary to protect someone’s life.
- Public task – the processing is necessary for you to perform a task in the public interest or for your official functions, and the task or function has a clear basis in law.
- Legitimate interests – the processing is necessary for your legitimate interests or the legitimate interests of a third-party unless there is a good reason to protect the individual’s personal data which overrides those legitimate interests.