The aim of the GDPR is to protect all EU citizens from privacy and data breaches in today’s data-driven world.
GDPR makes its applicability very clear – it applies to the processing of personal data by controllers and processors in the EU, regardless of whether the processing takes place in the EU or not. The GDPR also applies to the processing of personal data of data subjects in the EU by a controller or processor not established in the EU, where the activities relate to: offering goods or services to EU citizens (irrespective of whether payment is required) and the monitoring of behavior that takes place within the EU. Non-EU businesses processing the data of EU citizens also have to appoint a representative in the EU.
Data Subject Rights
Under the GDPR, breach notifications are now mandatory in all member states where a data breach is likely to “result in a risk for the rights and freedoms of individuals”. This must be done within 72 hours of first having become aware of the breach. Data processors are also required to notify their customers, the controllers, “without undue delay” after first becoming aware of a data breach.
Right to Access
Part of the expanded rights of data subjects outlined by the GDPR is the right for data subjects to obtain confirmation from the data controller as to whether or not personal data concerning them is being processed, where and for what purpose. Further, the controller shall provide a copy of the personal data, free of charge, in an electronic format.
Right to be Forgotten
Also known as Data Erasure, the right to be forgotten entitles the data subject to have the data controller erase his/her personal data, cease further dissemination of the data, and potentially have third parties halt processing of the data. The conditions for erasure, as outlined in article 17, include the data no longer being relevant to original purposes for processing, or a data subject withdrawing consent. It should also be noted that this right requires controllers to compare the subjects’ rights to “the public interest in the availability of the data” when considering such requests.
GDPR introduces data portability – the right for a data subject to receive the personal data concerning them – which they have previously provided in a ‘commonly use and machine readable format’ and have the right to transmit that data to another controller.
Privacy by design
Privacy by design as a concept has existed for years, but it is only just becoming part of a legal requirement with the GDPR. At its core, privacy by design calls for the inclusion of data protection from the onset of the designing of systems, rather than an addition. More specifically, ‘The controller shall… implement appropriate technical and organisational measures… in an effective way… in order to meet the requirements of this Regulation and protect the rights of data subjects’. Article 23 calls for controllers to hold and process only the data absolutely necessary for the completion of its duties (data minimization), as well as limiting the access to personal data to those needing to act out the processing.
Data Protection Officers
Under GDPR it is not necessary to submit notifications / registrations to each local DPA of data processing activities, nor is it a requirement to notify / obtain approval for transfers based on the Model Contract Clauses (MCCs). Instead, there are internal record keeping requirements, as further explained below, and DPO appointment is mandatory only for those controllers and processors whose core activities consist of processing operations which require regular and systematic monitoring of data subjects on a large scale or of special categories of data or data relating to criminal convictions and offences.