Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, was fully implemented throughout the EU on the 25th of May 2017. The directive was underpinned in Irish Legislation by The Data Protection Bill 2018.
In its simplest form, the directive requires all companies and organizations to put in place a demonstrable GDPR compliance structure throughout their organisations.
This means that each organisation must develop a GDPR implementation program containing written policies, procedures, and privacy impact assessment documents, webpage privacy policy & privacy statements and written training records for every employee.
If you (your business) either process or control data about individual citizens (data subjects) residing in EU countries then you will need to comply with the GDPR.
Who does the GDPR affect?
The GDPR not only applies to organisations located within the EU but it will also apply to organisations located outside of the EU if they offer goods or services to, or monitor the behaviour of, EU data subjects. It applies to all companies processing and holding the personal data of data subjects residing in the European Union, regardless of the company’s location.
What are the penalties for non-compliance?
Organizations can be fined up to 4% of annual global turnover for breaching GDPR or €20 Million. This is the maximum fine that can be imposed for the most serious infringements e.g. Not having sufficient customer consent to process data or violating the core of Privacy by Design concepts.
There is a tiered approach to fines e.g. a company can be fined 2% for not having their records in order (article 28), not notifying the supervising authority and data subject about a breach, or not conducting impact assessments. It is important to note that these rules apply to both controllers and processors – meaning information pertaining to data subjects held in the 'cloud' will not be exempt from GDPR enforcement.
What constitutes personal data?
Any information related to a natural person or ‘Data Subject’, that can be used to directly or indirectly identify the person. It can be anything from a name, a photo, an email address, bank details, posts on social networking websites, medical information, or a computer IP address.
What is the difference between a data processor and a data controller?
A data controller is the entity that determines the purposes, conditions and means of the processing of personal data, while the data processor is an entity which processes personal data on behalf of the controller.
Do data processors need 'explicit' or 'unambiguous' data subject consent - and what is the difference?
The conditions for consent have been strengthened, as companies will no longer be able to utilise long illegible terms and conditions full of legalese, as the request for consent must be given in an intelligible and easily accessible form, with the purpose for data processing attached to that consent - meaning it must be unambiguous.
Consent must be clear and distinguishable from other matters and provided in an intelligible and easily accessible form, using clear and plain language.
It must be as easy to withdraw consent as it is to give it. Explicit consent is required only for processing sensitive personal data - in this context, nothing short of “opt in” will suffice. However, for non-sensitive data, “unambiguous” consent will suffice.
What about Data Subjects under the age of 16?
Parental consent will be required to process the personal data of children (data subjects) under the age of 16 for online services; member states may legislate for a lower age of consent but this will not be below the age of 13.
Does my business need to appoint a Data Protection Officer (DPO)?
DPOs must be appointed in the case of: (a) public authorities, (b) organizations that engage in large scale systematic monitoring, or (c) organizations that engage in large scale processing of sensitive personal data (Art. 37).
If your organization does not fall into one of these categories, then you do not need to appoint a DPO.
When must I notify a data breaches?
Regulations surrounding data breaches primarily relate to the notification policies of companies that have been breached. Data breaches which may pose a risk to individuals must be notified to the Data Protection Authority (DPA) within 72 hours and to affected individuals without undue delay.