In May, Europe's data protection rules will undergo their largest overhaul in 20 years. When current regulations were drawn up in the late 1990s, the internet was still in its infancy.
To ensure the laws overseeing our personal data are fit for purpose, European regulators have created a series of new rules. The result is the mutually agreed European General Data Protection Regulation (GDPR), which will come into force on May 25, 2018. It will change how businesses and public sector organisations can handle the information of their customers.
The regulation has spawned a raft of GDPR experts who want to help businesses prepare for the changes GDPR will bring – and make a tidy sum for their expertise.
Elizabeth Denham, the UK's information commissioner, who is in charge of data protection enforcement, says she is frustrated by the amount of "scaremongering" around the potential impact for businesses. "The GDPR is a step change for data protection," she says. "It's still an evolution, not a revolution". She adds that for businesses and organisations already complying with existing data protection laws the new regulation is only a "step change".
Still, plenty of confusion remains. To help clear things up, here's WIRED's guide to the GDPR.
What is GDPR exactly?
The GDPR is Europe's new framework for data protection laws – it replaces the previous 1995 data protection directive, which current UK law is based upon.
The EU's GDPR website says the legislation is designed to "harmonise" data privacy laws across Europe as well as give greater protection and rights to individuals. Within the GDPR there are large changes for the public as well as businesses and bodies that handle personal information, which we'll explain in more detail later.
After more than four years of discussion and negotiation, GDPR was adopted by both the European Parliament and the European Council in April 2016. The underpinning regulation and directivewere published at the end of that month.
After publication of GDPR in the EU Official Journal in May 2016, it will come into force on May 25, 2018. The two year preparation period has given businesses and public bodies covered by the regulation to prepare for the changes.
GDPR SUMMARY
- WHEN DOES THE NEW REGULATION START?
- May 25, 2018
- WHO WILL ENFORCE IT IN THE UK?
- The Information Commissioner's Office
- WHAT'S NEW?
- There are new rights for people to access the information companies hold about them, obligations for better data management for businesses, and a new regime of fines
- DOES BREXIT MATTER?
- The UK is implementing a new Data Protection Bill which largely includes all the provisions of the GDPR. There are some small changes but our own law will be largely the same
Don't we already have data protection laws?
Each member state in the EU operates under the current 1995 data protection regulation and has its own national laws. In the UK, the current Data Protection Act 1998 sets out how your personal information can be used by companies, government and other organisations.
GDPR changes how personal data can be used. Its provisions in the UK will be covered by a new Data Protection Bill, which has now been published by the government. As noted by data protection expert Jon Baines, the UK's data protection plans include everything within the GDPR – although there are some minor changes.
The new UK data protection bill
The UK government's new data protection legislation, which will implement the vast majority of GDPR was published on September 13, 2017. The bill must pass through the House of Commons and the House of Lords before it becomes law.
The bill will implement GDPR into UK law and largely covers all the main areas of the EU regulation. However, there is some flexibility on how individual countries implement GDPR. The government says its bill sets out a number of exemptions from GDPR. These, it says, include extra protection for journalists, scientific and historical researchers, and anti-doping agencies who handle people's personal information.
The UK has also put a greater focus on the personal data of children. Its bill says that parental consent must be required from parents of children under the age of 13 to process their data. Elsewhere, other countries are setting this level at 16.
The Data Protection Bill is currently working its way through debates in the House of Commons and House of Lords. It is subject to a number of potential amendments, which all have to be approved by both houses before the Bill can be passed and become an Act of parliament. When this happens, the 1998 Data Protection Act will be repealed.
Is my company/startup/charity going to be impacted?
In short, yes. Individuals, organisations, and companies that are either 'controllers' or 'processors' of personal data will be covered by the GDPR. "If you are currently subject to the DPA, it is likely that you will also be subject to the GDPR," the ICO says on its website.
Both personal data and sensitive personal data are covered by GDPR. Personal data, a complex category of information, broadly means a piece of information that can be used to identify a person. This can be a name, address, IP address... you name it. Sensitive personal data encompasses genetic data, information about religious and political views, sexual orientation, and more.
These definitions are largely the same as those within current data protection laws and can relate to information that is collected through automated processes. Where GDPR differentiates from current data protection laws is that pseudonymised personal data can fall under the law – if it's possible that a person could be identified by a pseudonym.
So, what's different?
In the full text of GDPR there are 99 articles setting out the rights of individuals and obligations placed on organisations covered by the regulation. These include allowing people to have easier access to the data companies hold about them, a new fines regime and a clear responsibility for organisations to obtain the consent of people they collect information about.
Helen Dixon, the data protection commissioner for Ireland, who has major technology company offices under her jurisdiction, says the new regulation was needed and is a positive move. However, she adds that while large businesses are aware of the upcoming changes there needs to be a lot more knowledge in smaller companies, including startups. "One of the issues with startups is that when they're going through all the formalities new businesses go through, there's no data protection hook at that stage," Dixon says.
So, if you're only just hearing of GDPR, here are some of the bigger changes to be prepared for.
WHO IS IN CHARGE OF GDPR IN THE UK?
- GOVERNMENT
- The Department for Culture, Media and Sport is the government arm responsible for ensuring that UK law complies with the requirements of GDPR. The government body is responsible for creating the UK's Data Protection Bill but won't have control of the day-to-day elements of GDPR once it is enforced.
- THE REGULATOR
- Once the provisions of GDPR become law in the UK, the Information Commissioner's Office (ICO) will be responsible for enforcing them. The ICO has the power to conduct criminal investigations and issue fines. It is also providing organisations with huge amounts of guidance about how to comply with GDPR.
Accountability and compliance
Companies covered by the GDPR will be more accountable for their handling of people's personal information. This can include having data protection policies, data protection impact assessments and having relevant documents on how data is processed.
In the last 12 months, there's been a score of massive data breaches, including millions of Yahoo, LinkedIn, and MySpace account details. Under GDPR, the "destruction, loss, alteration, unauthorised disclosure of, or access to" people's data has to be reported to a country's data protection regulator – in the case of the UK, the ICO – where it could have a detrimental impact on those who it is about. This can include, but isn't limited to, financial loss, confidentiality breaches, damage to reputation and more. The ICO has to be told about a breach 72 hours after an organisation finds out about it and the people it impacts also need to be told.
For companies that have more than 250 employees, there's a need to have documentation of why people's information is being collected and processed, descriptions of the information that's held, how long it's being kept for and descriptions of technical security measures in place.
Additionally, companies that have "regular and systematic monitoring" of individuals at a large scale or process a lot of sensitive personal data have to employ a data protection officer (DPO). For many organisations covered by GDPR, this may mean having to hire a new member of staff – although larger businesses and public authorities may already have people in this role. In this job, the person has to report to senior members of staff, monitor compliance with GDPR and be a point of contact for employees and customers. "It means the data protection will be a boardroom issue in a way it hasn't in the past combined," Denham says.
There's also a requirement for businesses to obtain consent to process data in some situations. When an organisation is relying on consent to lawfully use a person's information they have to clearly explain that consent is being given and there has to be a "positive opt-in". A blog post from Denham explains there are multiple ways for organisations to process people's data.
Access to your data
As well putting new obligations on the companies and organisations collecting personal data, the GDPR also gives individuals a lot more power to access the information that's held about them. At present a Subject Access Request (SAR) allows businesses and public bodies to charge £10 to be given what's held about them.
Under the GDPR this is being scrapped and requests for personal information can be made free-of-charge. When someone asks a business for their data, they must stump up the information within one month. Everyone will have the right to get confirmation that an organisation has information about them, access to this information and any other supplementary information. As Dixon points out, big technology companies, as well as smaller startups, will have to give users more control over their data.
As well as this the GDPR bolsters a person's rights around automated processing of data. The ICO says individuals "have the right not to be subject to a decision" if it is automatic and it produces a significant effect on a person. There are certain exceptions but generally people must be provided with an explanation of a decision made about them.
The new regulation also gives individuals the power to get their personal data erased in some circumstances. This includes where it is no longer necessary for the purpose it was collected, if consent is withdrawn, there's no legitimate interest, and if it was unlawfully processed.
GDPR fines
One of the biggest, and most talked about, elements of the GDPR is the power for regulators to fine businesses that don't comply with it. If an organisation doesn't process an individual's data in the correct way, it can be fined. If it requires and doesn't have a data protection officer, it can be fined. If there's a security breach, it can be fined.
These monetary penalties will be decided upon by Denham's office and the GDPR states smaller offences could result in fines of up to €10 million or two per cent of a firm's global turnover (whichever is greater). Those with more serious consequences can have fines of up to €20 million or four per cent of a firm's global turnover (whichever is greater). These are larger than the £500,000 penalty the ICO can currently wield and, according to analysis, last year's fines would be 79 times higher under the new regulation.
But Denham says speculation that her office will try to make examples of companies by issuing large business-crippling fines isn't correct. "We will have the possibility of using larger fines when we are unsuccessful in getting compliance in other ways," she says. "But we've always preferred the carrot to the stick".
Denham says there is "no intention" for overhauling how her office hands out fines and regulates data protection across the UK. She adds that the ICO prefers to work with organisations to improve their practices and sometimes a "stern letter" can be enough for this to happen.
"Having larger fines is useful but I think fundamentally what I'm saying is it's scaremongering to suggest that we're going to be making early examples of organisations that breach the law or that fining a top whack is going to become the norm." She adds that her office will be more lenient on companies that have shown awareness of the GDPR and tried to implement it, when compared to those that haven't made any effort.
WHAT IS PERSONAL DATA?
- THE KEY TERMS
- GDPR and other data protection laws rely on the term 'personal data' to discuss information about individuals. There are two key types of personal data in the UK and they cover different categories of information.
- WHAT IS PERSONAL DATA?
- Personal data can be anything that allows a living person to be directly or indirectly identified. This may be a name, an address, or even an IP address. It includes automated personal data and can also encompass pseudonymised data if a person can be identified from it.
- SO, WHAT'S SENSITIVE PERSONAL DATA?
- GDPR calls sensitive personal data as being in 'special categories' of information. These include trade union membership, religious beliefs, political opinions, racial information, and sexual orientation.
How to prepare your business for GDPR
When implemented, GDPR will have a varying impact on businesses and organisations: for instance, not every company will require a data protection officer. To help prepare for the start of GDPR, the ICO has created a 12-step guide.
The guide, which is available here, includes steps such as making senior business leaders aware of the regulation, determining which info is held, updating procedures around subject access requests, and what should happen in the event of a data breach. In Ireland, the regulator has also setup a separate website explaining what should change within companies.
The ICO says that "many of the GDPR’s main concepts and principles are much the same as those in the current Data Protection Act (DPA)". It adds for businesses already complying with the current data protection law, its highly likely they will be meeting many of the GDPR principles.
As well as this guidance, the ICO says it is creating a phone serviceto help small businesses prepare for GDPR. The service will provide answers about how small companies can implement GDPR procedures and starts at the beginning of November 2017.
What big tech is doing
The big tech companies, like all others, have no exemption from GDPR. Google and Facebook, two of the biggest collectors of personal information, have been making changes to their businesses. But things haven't gone without a hitch.
Amid Facebook's Cambridge Analytica data scandal, the company has altered its position several times. Mark Zuckerberg initially said Facebook wouldn't apply the same privacy protections across the world. Since then he's reversed his position and announced everyone would get the same "tools" wherever they lived.
But Facebook has also changed the terms and conditions of its users who live outside the US and Europe. Reuters reports Zuckerberg's company is changing the location of most of its user registrations outside of Europe to the US, rather than Ireland. This means 1.5 billion people won't fall under the protection of GDPR.
Elsewhere, Google has sent notifications to all of its users to update their data and review what is collected about them. The firm has also updated its ad settings. Some individuals have received notifications saying they should review their privacy settings and Google has also created a page for the businesses it works with.
Looking for more?
We don't claim to have all the answers. In between a lot of GDPR hype there are some incredibly useful resources that have been published on the regulation. Here's where to go if you're looking for more in-depth reading:
– The full regulation. It's 88 pages long and has 99 articles.
– The ICO's guide to GDPR is essential for both consumers and those working within businesses.
– EU GDPR is full with information on the regulation. It details all you need to know and has a handy countdown clock for when GDPR will come into force.
– The EU's Article 29 data protection group is publishing guidelines on data breach notifications, transparency, and subject access requests.
This article was originally published in August 2017. It has since been updated with more information and resources about GDPR.
WHAT'S THE DIFFERENCE BETWEEN A DATA CONTROLLER AND PROCESSOR?
- THE DIFFERENT TERMS
- Not everyone that handles the personal data of individuals is the same and data protection laws allow for this by having two different terms: controller and processor. Here's what they mean.
- CONTROLLER
- A controller is an entity that decides the purpose and manner that personal data is used, or will be used
- PROCESSOR
- The person or group that processes the data on behalf of the controller. Processing is obtaining, recording, adapting or holding personal data
- Source: http://www.wired.co.uk/article/what-is-gdpr-uk-eu-legislation-compliance-summary-fines-2018
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