The General Data Protection Regulation (GDPR) (Regulation (EU) 2016/679) is a regulation by which the European Parliament, the Council of the European Union and the European Commission intend to strengthen and unify data protection for all individuals within the European Union (EU). It also addresses the export of personal data outside the EU. The GDPR aims primarily to give control back to citizens and residents over their personal data and to simplify the regulatory environment for international business by unifying the regulation within the EU. When the GDPR takes effect, it will replace the data protection directive (officially Directive 95/46/EC) of 1995. The regulation was adopted on 27 April 2016. It becomes enforceable from 25 May 2018 after a two-year transition period and, unlike a directive, it does not require national governments to pass any enabling legislation, and is thus directly binding and applicable.
“The proposed new EU data protection regime extends the scope of the EU data protection law to all foreign companies processing data of EU residents. It provides for a harmonization of the data protection regulations throughout the EU, thereby making it easier for non-European companies to comply with these regulations; however, this comes at the cost of a strict data protection compliance regime with severe penalties of up to 4% of worldwide turnover.”
The regulation applies if the data controller (organization that collects data from EU residents) or processor (organization that processes data on behalf of data controller e.g. cloud service providers) or the data subject (person) is based in the EU. Furthermore the Regulation also applies to organizations based outside the European Union if they collect or process personal data of EU residents. According to the European Commission “personal data is any information relating to an individual, whether it relates to his or her private, professional or public life. It can be anything from a name, a home address, a photo, an email address, bank details, posts on social networking websites, medical information, or a computer’s IP address.” The regulation does not purport to apply to the processing of personal data for national security activities or law enforcement within the European Union; however, industry groups concerned about facing a potential conflict of laws have questioned whether Article 48 of the GDPR -which states that any judgment of a court or tribunal and any decision of an administrative authority of a third country requiring a controller or processor to transfer or disclose personal data may only be recognised or enforceable in any manner if based on an international agreement, such as a mutual legal assistance treaty, in force between the requesting third (non_EU) country and the Union or a Member State – could be invoked to seek to prevent a data controller subject to a third country’s laws from complying with a legal order from that country’s law enforcement, judicial, or national security authorities to disclose to such authorities the personal data of an EU person, regardless of whether the data resides inside or outside the EU. The data protection reform package also includes a separate Data Protection Directive for the police and criminal justice sector that provides robust rules on personal data exchanges at national, European and international level.
Single set of rules and one-stop shop
A single set of rules will apply to all EU member states. Each member state will establish an independent Supervisory Authority (SA) to hear and investigate complaints, sanction administrative offences, etc. SAs in each member state will cooperate with other SAs, providing mutual assistance and organising joint operations. Where a business has multiple establishments in the EU, it will have a single SA as its “lead authority”, based on the location of its “main establishment” (i.e., the place where the main processing activities take place). The lead authority will act as a “one-stop shop” to supervise all the processing activities of that business throughout the EU (Articles 46–55 of the GDPR). A European Data Protection Board (EDPB) will coordinate the SAs. EDPB will replace Article 29 Working Party.
There are exceptions for data processed in an employment context and data processed for the purposes of national security, that still might be subject to individual country regulations (Articles 2(2)(a) and 82 of the GDPR).
Responsibility and accountability
The notice requirements remain and are expanded. They must include the retention time for personal data and contact information for data controller and data protection officer has to be provided.
Automated individual decision-making, including profiling (Article 22) is contestable, similarly to the Data Protection Directive (Article 15). Citizens have rights to question and fight significant decisions that affect them that have been made on a solely algorithmic basis. Many media outlets have commented on the introduction of a “right to explanation” of algorithmic decisions, but legal scholars have since argued that the existence of such a right is highly unclear without judicial test, and limited at best.
In order to be able to demonstrate compliance with the GDPR, the data controller should implement measures which meet the principles of data protection by design and data protection by default. Privacy by Design and by Default (Article 25) require that data protection measures are designed into the development of business processes for products and services. Such measures include pseudonymising personal data, by the controller, as soon as possible (Recital 78).
It is the responsibility and liability of the data controller to implement effective measures and be able to demonstrate the compliance of processing activities even if the processing is carried out by a data processor on behalf of the controller. (Recital 74).
Data Protection Impact Assessments (Article 35) have to be conducted when specific risks occur to the rights and freedoms of data subjects. Risk assessment and mitigation is required and prior approval of the Data Protection Authorities (DPA) is required for high risks. Data Protection Officers (Articles 37–39) are to ensure compliance within organizations.
They have to be appointed:
- for all public authorities, except for courts acting in their judicial capacity
- if the core activities of the controller or the processor consist of
- processing operations which, by virtue of their nature, their scope and/or their purposes, require regular and systematic monitoring of data subjects on a large scale
- processing on a large scale of special categories of data pursuant to Article 9 and personal data relating to criminal convictions and offences referred to in Article 10
Valid consent must be explicit for data collected and the purposes data is used for (Article 7; defined in Article 4). Consent for children must be given by the child’s parent or custodian, and verifiable (Article 8). Data controllers must be able to prove “consent” (opt-in) and consent may be withdrawn.
Data Protection Officer
Where the processing is carried out by a public authority, except for courts or independent judicial authorities when acting in their judicial capacity, or where, in the private sector, processing is carried out by a controller whose core activities consist of processing operations that require regular and systematic monitoring of the data subjects, a person with expert knowledge of data protection law and practices should assist the controller or processor to monitor internal compliance with this Regulation. The DPO is similar but not the same as a Compliance Officer as they are also expected to be proficient at managing IT processes, data security (including dealing with cyber-attacks) and other critical business continuity issues around the holding and processing of personal and sensitive data. The skill set required stretches beyond understanding legal compliance with data protection laws and regulations. The appointment of a DPO within a large organization will be a challenge for the Board as well as for the individual concerned. There are myriad governance and human factor issues that organizations and companies will need to address given the scope and nature of the appointment. In addition, the post holder will need to create their own support team and will also be responsible for their own continuing professional development as they need to be independent of the organization that employs them, effectively as a “mini-regulator”.
More details on the function and the role of Data Protection Officer were given on 13 December 2016 (revised 5 April 2017) with a guideline document.
The GDPR refers to pseudonymisation as a process that transforms personal data in such a way that the resulting data cannot be attributed to a specific data subject without the use of additional information. An example of pseudonymisation is encryption, which renders the original data unintelligible and the process cannot be reversed without access to the correct decryption key. The GDPR requires that this additional information (such as the decryption key) be kept separately from the pseudonymised data. Pseudonymisation is recommended to reduce the risks to the concerned data subjects and also help controllers and processors to meet their data-protection obligations (Recital 28).
Although the GDPR encourages the use of pseudonymisation to “reduce risks to the data subjects,” (Recital 28) pseudonymised data is still considered personal data (Recital 26) and therefore remains covered by the GDPR.
Under the GDPR, the Data Controller will be under a legal obligation to notify the Supervisory Authority without undue delay. The reporting of a data breach is not subject to any de minimis standard and must be reported to the Supervisory Authority within 72 hours after having become aware of the data breach (Article 33). Individuals have to be notified if adverse impact is determined (Article 34). In addition, the data processor will have to notify the controller without undue delay after becoming aware of a personal data breach (Article 33).
However, the data processor or controller do not have to notify the data subjects if anonymized data is breached. Specifically, the notice to data subjects is not required if the data controller has implemented pseudonymisation techniques like encryption along with adequate technical and organizational protection measures to the personal data affected by the data breach (Article 34).
The following sanctions can be imposed:
- a warning in writing in cases of first and non-intentional non-compliance,
- regular periodic data protection audits,
- a fine up to 10000000 EUR or up to 2% of the annual worldwide turnover of the preceding financial year in case of an enterprise, whichever is greater (Article 83, Paragraph 4),
- a fine up to 20000000 EUR or up to 4% of the annual worldwide turnover of the preceding financial year in case of an enterprise, whichever is greater (Article 83, Paragraph 5 & 6).
Right to erasure
A right to be forgotten was replaced by a more limited right to erasure in the version of the GDPR adopted by the European Parliament in March 2014. Article 17 provides that the data subject has the right to request erasure of personal data related to them on any one of a number of grounds including non-compliance with article 6.1 (lawfulness) that includes a case (f) where the legitimate interests of the controller is overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data (see also Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González).
A person shall be able to transfer their personal data from one electronic processing system to and into another, without being prevented from doing so by the data controller. Data that has been sufficiently anonymised is excluded, but data that has only been de-identified but remains possible to link to the individual in question, such as by him or her providing the relevant identifier, is not. Both data that has been ‘provided’ by the data subject, and data that has been ‘observed’ — such as about their behaviour — is within scope. In addition, the data must be provided by the controller in a structured and commonly used Open standard electronic format. The right to data portability is provided by Article 20 of the GDPR. Legal experts see in the final version of this measure a “new right” created that “reaches beyond the scope of data portability between two controllers as stipulated in Article 18”. (Note that the Article number was updated to Article 20 in the final release version. The quotation was accurate at the time.)
Data protection by Design and by Default
Data protection by Design and by Default (Article 25) requires that data protection is designed into the development of business processes for products and services. This requires that privacy settings must be set at a high level by default, and that technical and procedural measures should be taken care by the controller in order to make sure that the processing, throughout the whole processing lifecycle, complies with the regulation. Controllers should also implement mechanisms to ensure that personal data is only processed when necessary for each specific purpose.
A report by ENISA (the European Union Agency for Network and Information Security) elaborates on what needs to be done to achieve privacy and data protection by default. It specifies that encryption and decryption operations must be carried out locally, not by remote service, because both keys and data must remain in the power of the data owner if any privacy is to be achieved. The report specifies that outsourced data storage on remote clouds is practical and relatively safe, as long as only the data owner, not the cloud service, holds the decryption keys.
Records of processing activities
Records of processing activities must be maintained, that include purposes of the processing, categories involved and envisaged time limits. These records must be made available to the supervisory authority on request. (article 30).
Discussion and challenges
The proposal for the new regulation gave rise to much discussion and controversy. Thousands of amendments were proposed. The single set of rules and the removal of administrative requirements were supposed to save money. But, as a May 2017 study conducted by Dimensional Research and TrustArc showed, overall, IT professionals expect that compliance with GDPR will require additional investment: over 80 percent of those surveyed expect GDPR-related spending to be at least $100,000. These concerns were echoed in a report commissioned by the law firm Baker & McKenzie that found that “around 70 percent of respondents believe that organizations will need to invest additional budget/effort to comply with the consent, data mapping and cross-border data transfer requirements under the GDPR.” Critics[who?] pointed to other issues as well.
- The requirement to have a Data Protection Officer (DPO) is new for many EU countries and criticized by some[weasel words] for its administrative burden.
- The GDPR was developed with a focus on social networks and cloud providers, but did not consider requirements for handling employee data sufficiently.
- Data portability is not seen as a key aspect for data protection, but more a functional requirement for social networks and cloud providers.
- Protection against automated decisions in Article 22, brought forward from the Data Protection Directive’s Article 15, has been claimed to provide protection against growing numbers of algorithmic decisions on and offline, including potentially a right to an explanation. Whether these old provisions do provide any meaningful protection is a subject of ongoing debate.
- Language and staffing challenges for the Data Protection Authorities (DPA):
- Non-European companies might prefer the Irish DPA (or the UK while it remains in the EU) because of the English language. This will require extensive resources in those countries.
- EU citizens no longer have a single DPA to contact for their concerns, but have to deal with the DPA chosen by the company involved. Communication problems due to foreign languages have to be expected.
- The new regulation conflicts with other non-European laws and regulations and practices (e.g. surveillance by governments). Companies in such countries should no longer be considered acceptable for processing EU personal data. See EU-US Privacy Shield.
- The biggest challenge might be the implementation of the GDPR in practice:
- The implementation of the EU GDPR will require comprehensive changes to business practices for companies that had not implemented a comparable level of privacy before the regulation entered into force (especially non-European companies handling EU personal data).
- There is already a lack of privacy experts and knowledge as of today and new requirements might worsen the situation. Therefore education in data protection and privacy legislation, particularly keeping in compliance with new rules as they arise, will be a critical factor for the success of the GDPR.
- The European Commission and DPAs have to provide sufficient resources and power to enforce the implementation and a unique level of data protection has to be agreed upon by all European DPAs since a different interpretation of the regulation might still lead to different levels of privacy.
- Europe’s international trade policy is not yet in line with the GDPR.
The proposal for GDPR was released on 25 January 2012.
The schedule is
- 21 October 2013: European Parliament Committee on Civil Liberties, Justice and Home Affairs (LIBE) had its orientation vote.
- 15 December 2015: Negotiations between European Parliament, Council and Commission (trialogue) resulted in a joint proposal.
- 17 December 2015: European Parliament’s LIBE committee voted positively on the outcome of the negotiations between the three parties.
- 8 April 2016: Adoption by the Council of the European Union.
- 14 April 2016: Adoption by the European Parliament.
- The regulation entered into force 20 days after its publication in the Official Journal of the European Union on 4 May 2016. Its provisions will be directly applicable in all member states two years after this date.
- It shall apply from 25 May 2018.