This sandbox is in the article namespace. Either move this page into your userspace, or remove the {{User sandbox}} template. The European Commission plans to unify data protection within the European Union (EU) with a single law, the General Data Protection Regulation (GDPR). The current EU Data Protection Directive 95/46/EC does not consider important aspects like globalization and technological developments like social networks and cloud computing sufficiently and new guidelines for data protection and privacy were required. Therefore a proposal for the regulation has been released on 25 January 2012. The adoption is aimed for in 2014 and the regulation is planned to take effect in 2016 after a transition period of 2 years. Discussions regarding specific contents are still ongoing.
Summary
The proposed new EU data protection regime extends the scope of the EU data protection law to all foreign companies processing data of EU residents. It provides for a harmonization of the data protection regulations throughout the EU, thereby making it easier for non-European companies to comply with these regulations; however, this comes at the cost of a strict data protection compliance regime with severe penalties of up to 2 % of worldwide turnover. [1]
Content
The proposal for the European Data Protection Regulation contains the following key changes: [2]
Scope
The regulation applies if the data controller or processor (organization) or the data subject (person) is based in the EU. Furthermore (and unlike the current Directive) the Regulation also applies to companies based outside the European Union if they process personal data of EU residents. According to the European Commission "personal data is any information relating to an individual, whether it relates to his or her private, professional or public life. It can be anything from a name, a photo, an email address, bank details, posts on social networking websites, medical information, or a computer’s IP address." [3]
Single Set of Rules
One single set of rules applies to all EU member states and there will be one Single Data Protection Authority (DPA) responsible for each company depending on where the Company is based or which DPA it chooses. A European Data Protection Board will coordinate the DPAs.
Responsibility & Accountability
The notice requirements remain and are expanded. They must include the retention time for personal data and contact information for data controller and data protection officer has to be provided. Privacy by Design and by Default (Article 23) require that data protection is designed into the development of business processes for products and services privacy settings are set at a high level by default. Data Protection Impact Assessments (Article 33) have to be conducted when specific risks occur to the rights and freedoms of data subjects. Risk assessment and mitigation is required and an prior approval of the DPA for high risks. Data Protection Officers (Articles 35-37) are to ensure compliance within organizations. They have to be appointed for all public authorities and for enterprises with more than 250 employees.
Consent
Valid consent must be explicit for data collected and purposes data used (Article 7; defined in Article 4). Consent for children under 13 must be given by child’s parent or custodian, and should be verifiable (Article 8). Data controllers must be able to prove “consent” (opt-in) and consent may be withdrawn. [4]
Data breaches
The data controller has to notify the DPA without undue delay and, where feasible, not later than 24 hours after having become aware of the data breach (Article 31). Individuals have to be notified if adverse impact is determined (Article 32).
Fines
The following fines shall be imposed
- Up to €250K or up to 0.5% of the annual global sales for intentionally or negligently not responding to requests by the data subject or the DPA,
- Up to €500K or up to 1% of annual global sales for intentionally or negligently not complying with GDPR
- Up to €1,000K or up to 2% of annual global sales for intentionally or negligently not complying with specific GDPR regulations
Right to be Forgotten
Personal data has to be deleted when the individual withdraws consent or the data is no longer necessary and there is no legitimate reason for an organization to keep it. (Article 17)
Data Portability
A user shall be able to request a copy of personal data being processed in a format usable by this person and be able to transmit it electronically to another processing system. (Article 18)
Timeline
The preliminary schedule is [5]
- 27th February 2013: Deadline for tabling amendments
- End of April 2013: Orientation vote in LIBE Committee
- from May 2013 on (depending on progress in the Council of Ministers) Negotiations between European Parliament, Council and Commission (Trilogue)
Discussion & Challenges
The proposal for the new regulation is not final yet and discussed controversially. The single set of rules and the removal of administrative requirements are supposed to save money. But critics point out some issues
- The requirement to have a Data Protection Officer (DPO) in companies with more than 250 employees is new for many EU countries and criticized by some for its administrative burden. For other countries like Germany this is lowering the level of data protection since there is already a requirement for a DPO in smaller companies (in Germany > 9 employees).
- The breach notification to the authorities within 24 hours is considered very ambitious by many experts.
- The GDPR was developed with a focus on social networks and cloud providers, but did not consider requirements for handling employee data sufficiently.
- Data Portability is not seen as a key aspect for data protection, but more a functional requirement for social networks and cloud providers.
- Language and staffing challenges for the Data Protection Authorities (DPA):
- - Non-European companies might prefer the UK / Irish DPA because of the English language. This will require extensive resources in those countries.
- - EU citizen do no longer have a single DPA to contact for their concerns, but have to deal with the DPA the company chose. Communication problems due to foreign languages have to be expected.
- The new regulation conflicts with other non-European laws and regulations (like the US Homeland Security Act) and practices (surveillance by governments). Companies in such countries should not be acceptable for processing EU personal data anymore.
- Currently specific contents of the proposal are still under discussion, but the biggest challenge might be the implementation of the GDPR in practice:
- - The European Commission and DPAs have to provide sufficient resources and power to enforce the implementation and a unique level of data protection has to be agreed upon by all European DPAs since a different interpretation of the regulation might still lead to different levels of privacy.
- - The implementation of the EU GDPR will require comprehensive changes of business practices for companies that did not implement a comparable level of privacy until now (especially non-European companies handling EU personal data).
- - There is already a lack of privacy experts and knowledge as of today and new requirements might worsen the situation. Therefore education in data protection and privacy will be a critical factor for the success of the GDPR.
Change Management
What are the most important steps for privacy professionals to adapt to the GDPR? [6]
1) The proposed changes to the European Data Protection Regulation will affect you if you have
- - European customers, or
- - European employees, partners, offices, etc.
2) Take your time to go through the changes of the GDPR and identify new requirements
3) Determine what risks to privacy need real protection considering your
- - Business situation (like reputation, customer satisfaction)
- - Legal requirements (future and current)
References
- ^ "New draft European data protection regime". m law group. Retrieved 03 January 2013.
- ^ Proposal for the EU General Data Protection Regulation. European Commission. 25 January 2012. Retrieved 03 January 2013.
- ^ European Commission’s press release announcing the proposed comprehensive reform of data protection rules. 25 January 2012. Retrieved 03 January 2013.
- ^ "How the Proposed EU Data Protection Regulation Is Creating a Ripple Effect Worldwide". Judy Schmitt, Florian Stahl. 11 October 2012. Retrieved 03 January 2013.
- ^ General Data Protection Regulation in 10 Points. Jan Philipp Albrecht. 20 December 2012. Retrieved 03 January 2013
- ^ "How the Proposed EU Data Protection Regulation Is Creating a Ripple Effect Worldwide". Judy Schmitt, Florian Stahl. 11 October 2012. Retrieved 03 January 2013.
External Links
EU Data Protection page
How to prepare for proposed EU data protection regulation (Computerweekly)