FOCUS ON EUROPE
school, every charity, every public authority, every sports club, everything.” And, in terms of beneficiaries, every living individual in Europe and potentially most of the world is a beneficiary. He adds: “All you need to do to be
regulated is to touch information about people and all you need to do to be a beneficiary is live and breathe. From the moment you’re born until the moment you’re in the box you are a beneficiary of this law. Employment law is massive but it doesn’t mean a jot if you‘re not working or not employing anyone.”
What’s changing?
Since 1995, there have been significant advances in IT, and fundamental changes to the ways in which people and companies communicate and share information. The EU Member States have each taken different approaches to implementing the Directive, creating compliance difficulties for many businesses. The EU’s legislative bodies have
reached an agreement on an updated and more harmonised data protection law (the ‘Regulation’). The Regulation will significantly change EU data protection law, strengthening individuals’ rights, expending the territorial scope, increasing compliance obligations and expanding regulator enforcement powers.
Which countries are affected? Non-EU businesses will be subject to the Regulation if they: (i) offer goods or services to EU residents; or (ii) monitor the behaviour of EU residents. Many non-EU businesses that were not required to comply with the Directive will be required to comply with the Regulation. Consent, as a legal basis for processing, will be harder to obtain: Under the Regulation, individuals’ consent must
be freely given, specific, informed and unambiguous.
Increased enforcement powers Fines under EU Member State law vary, and are comparatively low (the UK maximum fine is £500,000). The Regulation is significantly increasing the maximum fine to €20 million, or four per cent of annual worldwide turnover, whichever is greater.
Data protection by design/default Organisations are now required to implement data protection by design (when creating new products, services or other data processing activities) and by default (by implementing data minimisation techniques). They also need to perform data protection impact assessments to identify privacy risks in new products.
The right to Data Portability Individuals will have the right to obtain a copy of their personal data from the controller in a commonly-used format and have it transferred to another controller.
Data breach notification The Regulation will require businesses to notify the SA of data breaches within 72 hours. If the breach has the potential for serious harm, individuals will have to be notified without undue delay.
The ‘right to be forgotten’ Individuals will now have the right to request that businesses delete their personal data in certain circumstances (e.g., the data is no longer necessary for purposes for which it was collected).
The right to object to ‘profiling’ Individuals will have the right to object to profiling on grounds relating to their particular situation. Profiling is defined broadly and includes most forms of online tracking and behavioural
The biggest legal themes that you can think about are nowhere near as big as the GDPR. ”
advertising, making it harder for businesses to use data for these activities.
Impact of Brexit The bottom line is – UK organisations will need to be compliant with GDPR, whether the UK is in or out of the EU. Eduardo Ustaran, Partner, Privacy
and Cyber Security at international law firm, Hogan Lovells International, believes that it’s in the interests of the UK Government to create data controls that mirror the GDPR. He says: “Brexit will not happen in the data protection world. The UK needs to make a decision. Should we go alone on data protection or should we follow Europe? I can guarantee with 100 per cent certainty that the UK Government will follow European data protection law no matter what. It’s the only way for the UK to continue to be part of the digital economy in a lawful way.” Regardless of what data legislation the UK puts in place, Quentin Taylor, director EMEA Information Security at Canon EMEA, thinks UK-based companies will have to comply with GDPR in any case. He says: “At Canon, I think we’ll
absolutely have to because we’ve got data centres all over Europe. Data transfers happen across huge numbers of countries. When we leave the EU, if we do have separate regulatory framework here it will have a huge impact for any multinational. I think it will also have a huge impact on British businesses.” Ian Bourne, group manager of policy delivery at the Information Commissions Office (ICO) – which is responsible for the UK’s data laws – says the organisation is keeping its options open.
He explains: “It’s not quite as
straight forward that we’ll need to 100 per cent follow GDPR. But there will be some form of information rights just as there is any other developed nation.”
35 issue 28 summer 2016
Words: Duncan MacRae
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