What is GDPR?
The EU General Data Protection Regulation or “GDPR” is the most important change to data protection and privacy law in two decades. It was approved by the EU Parliament in April 2016 and comes into force in the UK on 25 May 2018 . GDPR will replace the Data Protection Act 1998 and, while it is similar to the current regime under the 1998 Act in many ways, it is a great deal more modern, taking into account major advances in science and technology. Most importantly for businesses it is more demanding.
Why is GDPR necessary?
GDPR is designed both to harmonise data protection law throughout Europe and to modernise it. A great deal has changed in the last two decades, not least the ways in which personal data is collected and processed by organisations. In particular, the growth of the internet and the significant increase in the amount of personal data being transferred, stored, and processed online means that legislation that worked 20 years ago is, in many respects, no longer up to the task.
Will GDPR affect my work?
Simply put, if you handle personal data of any kind, you are already subject to the Data Protection Act 1998, so yes, it will. GDPR will apply to all organisations operating within the EU and to organisations outside of the EU that deal with individuals within the EU. The good news is that if you're already complying with the Data Protection Act, you’re off to a strong start. Nonetheless, it's very important to be aware of, and to understand, your obligations (existing and new) under GDPR.
What does Brexit mean for GDPR?
The UK government has made it clear that the provisions of the GDPR will still apply after Brexit. In September 2017, the Government published a new Data Protection Bill, the main purpose of which is to bring the provisions of the GDPR onto the UK statute book after we leave the EU. There are already some differences between the GDPR and the Data Protection Bill, but it is likely that from the perspective of most businesses, the steps necessary for compliance will be the same.
What are the key changes?
Compared to the current data protection framework under the Data Protection Act 1998, the GDPR will bring a number of important changes and enhancements including:
- Increased accountability and greater responsibilities within organisations to ensure that personal data is protected and processed within the bounds of the law, for example data protection impact assessments become mandatory, organisations are obliged to demonstrate that they comply with the new law and requirements to keep records of data processing activities.
- A wider range of data will now be classed as “personal data”;
- Data processors (eg contractors and service providers) will now also be regulated;
- The penalties for failure to comply will be much stronger (up to €20m or four percent of total worldwide turnover, whichever is higher);
- New procedures requiring data controllers to notify the ICO of data breaches within 72 hours of the breach;
- Enhanced individual rights including greater transparency and “the right to be forgotten”;
- The requirement for many organisations to appoint a Data Protection Officer where personal data processing is significant; and
- Stricter rules on consent given by data subjects to the collection and processing of their personal data.
- Removal of charges, in most cases, for providing copies of records.
What is a Data Protection Impact Assessment (DPIA)?
A DPIA is a mechanism for identifying, quantifying and mitigating data privacy risks. It is undertaken to ensure appropriate controls are put in place when any new process, system or ways of working involving the use of high risk processing (such as processing “health data”) is introduced.
- When undertaking a DPIA, an organisation’s designated Data Protection Officer must be consulted. A DPIA should be signed off by an organisation’s Senior Information Risk Owner (SIRO) and the Data Protection Officer (DPO).
- A DPIA has to be completed before any new process, system or way of working goes live (ie at the business planning stage of a project) where it involves high risk processing.
- The completion of a DPIA will help to minimise the chance that any new process, system or way of working will present a high risk to the rights of individuals through a failure to comply with the GDPR (or new DPA).
What/who is the DPO?
The GDPR requires all public authorities to have a Data Protection Officer. Their role is to inform and advise their organisation(s) about all issues in relation to GDPR compliance. The DPO will also be responsible for monitoring the organisation(s) compliance with the GDPR. The DPO reports directly to an organisation’s highest management level and may not be disciplined or dismissed for carrying out their tasks as a DPO. It is envisaged that the DPO will be supported by the organisation’s Information Governance (IG) team.
It is important to note that data processors that process personal data on behalf of health or social care organisations must appoint a DPO where they either:
- Process special categories data on a large scale; or
- Perform regular or systematic monitoring of data subjects.