EU General Data Protection Regulations #1: What does it all mean?

EU General data protection regulationsEU general data protection regulations are facing fundamental change in the near future. The changes arise due to rapidly changing consumer and mobile technology developments. These forced the EU to rethink its approach and ensure respect and protection for fundamental human rights.

Draft regulations first appeared from the European Commission in 2012. Now, a little over four years on, the final version of the GDPR appeared in the Official Journal of the European Union. This will have far-reaching consequences for all legal practices as it effectively means some of the most stringent data protection laws in the world will come into force from 25th May 2018.

In normal circumstances, there would now be a two-year gap to permit individual EU members to change their own legislation to incorporate the regulations. However, GDPR will circumvent this by coming into effect directly on 25th May 2018.

What are the key changes?

Key changes include:

Wider territorial scope.

The new regulations will affect EU-domiciled and non-EU domiciled organisations in the same manner. In practical terms this means the GDPR will capture more overseas organisations. Additionally, overseas organisations will have to designate a representative within the EU.

Tougher Sanctions.

GDPR will boast some of the highest non-compliance sanctions including income based fines of up to 4% of worldwide turnover. Fines can also be imposed in conjunction with other sanctions.

GDPR also makes it considerably easier for individuals to claim compensation. This extends beyond just material damage and will include compensation for distress even where there is no financial loss.

Other key changes.

The list is almost endless. Further changes include:

  • More caught data.
  • Suppliers included in the legislation.
  • Higher bar for lawful processing.
  • International transfers.
  • Data breach notification changes.
  • Cross-border enforcement.
  • The appointment of data protection officers within organisations.

I indicated earlier the extensive nature of the legislation! To get the full picture, it’s worth taking a look at the article by DLA Piper which you can view here.

How will GDPR affect individuals?

GDPR enhances the rights enjoyed by individuals under current legislation and introduces a new right to data portability.  Greater transparency is also required from anyone who controls personal data and the following information must be provided at the time the data is obtained:

  • the identity and contact details of the controller
  • the Data Protection Officer’s contact details (if there is one)
  • both the purpose for which data is used and the legal basis for processing including if relevant the legitimate interests for processing
  • the recipients or categories of recipients of the personal data
  • details of international transfers
  • the period for which personal data is to be stored or, if that is not possible, the criteria used to determine this
  • the existence of rights of the data subject including the right to access, rectify, require erasure (the “right to be forgotten”), restrict processing, object to processing and data portability; where applicable the right to withdraw consent, and the right to complain to supervisory authorities
  • the consequences of failing to provide data necessary to enter into a contract
  • the existence of any automated decision making and profiling and the consequences for the data subject.

Additionally, where a controller wishes to process existing data for a new purpose, they must inform the individual concerned.

What can you do to prepare for the new regulations?

The extent of the regulations is bewildering and I have only touched on some of the key points here. My second article, EU GDPR #2: How can legal practices prepare? describes a few basic preparations that you can make to ensure compliance.

Mike O’Donnell, May 2017.

EU GDPR and law firms #2: How can you prepare?

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