The inconsistent implementation of the previous legal framework by Member States and the rapid technological developments have led to the need for stronger, more coherent and solid data protection rules. Thus, the European Parliament adopted on April 2016 the General Data Protection Regulation (the "GDPR"), a new legal framework on data protection which repeals the Data Protection Directive 95/46/EC. The GDPR becomes directly applicable to all Member States from 25 May 2018. The GDPR sets up a regulatory framework which seeks to strengthen individuals' control over their personal data, harmonise the protection of this fundamental right and ensure the free flow of personal data between Member States.
Application of the GDPR
The GDPR applies to natural persons and covers data processed both by automated means (e.g. a computer database) and data contained in or intended to be part of non-automated filing systems (traditional paper files). In general, its scope its broadened by covering the processing of personal data where: (i) the controller or the processor is established in the European Union (the "EU"), regardless of whether the processing takes place in the EU or not; (ii) the data subjects are in the EU, the controller or processor is not established in the EU and the processing activities relate to offering goods or services or the monitoring of the data subject's behavior which takes place within the EU; and (iii) the controller is not established in the EU but in a place where Member State law applies by virtue of public international law.
The GDPR does not apply to the processing of personal data by a natural person in the course of purely personal or household activity or by competent authorities in relation to the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties. The latter is governed by the EU Directive 2016/680.
The GDPR introduces the following key reforms to the data protection within the EU:
Consent is considered valid only if it constitutes a freely given, informed, specific, unambiguous and clear affirmative act in the form of a written (letter, email, fax) or oral statement. For instance, the data subject may tick a box when visiting an internet website or choose technical settings for information society services. Thus, silence, inactivity or pre-ticked boxes are excluded from the definition of valid consent. The data subject has also the right to withdraw its consent at any time and without any limitation. In case the data subject cannot refuse or withdraw consent without resulting to its detriment, then there is breach of the provisions of the GDPR.
Right to be forgotten
The data subjects enjoy the right to request the erasure of their personal data where: (i) the processing is no longer necessary for the purposes the data was initially collected; (ii) they have withdrawn their consent or objects to the processing of their personal data; and (iii) the processing does not comply with the GDPR. For instance, the consent might have been given by a child who was not fully aware of the risks involved and later wishes to have its personal data deleted from the internet.
Right to data portability
The data subjects have the right to receive their personal data in a structured, commonly used and machine-readable format and transmit these data to another controller where it has given its consent to the processing and the processing is carried out by automated means. Exemption to the right to data portability is provided where the processing is carried out by an official authority or in the public interest.
Data protection by design and by default
Firstly, the controller is obliged to implement appropriate technical and organization measures, designed to implement data-protection principles in order to protect the rights of data subjects.
Secondly, the controller shall implement appropriate technical and organization measures by default in order to ensure that the personal data are not made accessible to an indefinite number of natural persons but are made accessible and are processed only for the specific purpose of the processing.
The above may be achieved by minimizing or pseudonymising the processing of personal data, transparency of the functions and processing of personal data, enabling the data subject to monitor its data processing or enabling the controller to create and improve security features. The principles of data protection by design and by default shall be taken into consideration by the producers of products, services and applications and in the context of public tenders.
Data protection impact assessment
Where the processing is likely to result in a high risk to the rights and freedoms of natural persons, the controller shall carry out beforehand an assessment of the likelihood and severity of the high risk and its impact on the protection of personal data. In particular, a data protection impact assessment is required where (i) the processing applies to large-scale processing operations which aim to process a considerable amount of personal data at regional, national or supranational level; (ii) systematic and extensive evaluation of personal aspects takes place in relation to personal data or following processing of special categories of personal data, biometric data or data on criminal convictions and offences or related security measures; or (iii) the processing results from monitoring publicly accessible areas on a large scale, especially when using optic-electronic devices.
The indiscriminate general notification obligations to the supervisory authority are now abolished and replaced by effective procedures and mechanisms which release the administrative and financial burdens imposed by the previous legal framework. The controller takes into consideration the nature, scope, context and purposes of the processing and the sources of the risk.
Where the processing involves patients or clients' personal data and is carried out by an individual physician, other health care professional or lawyer, the processing is not considered as large scale and thus the data protection impact assessment is not mandatory.
The controller should communicate to the data subject a personal data breach, without undue delay, where the personal data breach is likely to result in a risk to the rights and freedoms of natural persons, similarly to the above. The notification should take place not later than 72 hours after having become aware of the breach. If the latter is not possible, then the notification should include the reasons for which the delay occurred. The controller is exempt from the obligation to notify only if it is able to prove that the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons. Examples of such risks are the following: loss of control over their personal data or limitation of their rights, discrimination, identity theft or fraud, financial loss, unauthorized reversal of pseudonymisation, damage to reputation, loss of confidentiality of personal data protected by professional secrecy and so forth.
One-Stop Shop Mechanism
Where the controller or processor is established in more than one Member State or the processing of personal data affects data subjects in more than one Member State, the supervisory authority of the main or the single establishment of the controller or processor shall act as the lead authority.
The lead authority should cooperate with the supervisory authorities of other Member States concerned where: (i) the establishment of the controller or processor is situated on the territory of that Member State; (ii) the data subject who lodged a complaint resides in that Member State; or (iii) the complaint has been lodged with the specific supervisory authority.
The lead authority should, inter alia, adopt binding decisions and coordinate the supervisory authorities concerned in the decision-making process.
The supervisory authorities should handle local cases where (a) the subject matter of the specific processing concerns only processing carried out in a single Member State; or (b) involves only data subjects in that single Member State. Under these circumstances, the supervisory authority should inform the lead authority and the latter should decide whether it will handle the case based on the principle for cooperation between the lead authority and the other supervisory authorities.
In cases where the processing is carried out by public authorities or private bodies in the public interest, the one-stop shop mechanism shall not apply and the competent authority shall be the supervisory authority of the Member State of such public authority or private body.
Data Protection Officer
A Data Protection Officer shall be appointed where the controller and the processor fall within one of the three following circumstances: (a) it is a public authority or body; or in the private sector, (b) their core activities require regular and systematic monitoring of data subjects on a large scale; or (c) their core activities consist of processing on a large scale of special categories of data and personal data relating to criminal convictions and offences. The Data Protection Officer assumes the tasks of advising, monitoring internal compliance and cooperating with the supervisory authority and is bound by secrecy and confidentiality.
European Data Protection Board
The European Data Protection Board (the "Board") is a newly established by the GDPR body which has legal personality. It is assigned by the tasks of ensuring and monitoring the consistent application of the GDPR, issuance of guidelines, recommendations and best practices and so forth.
Code of Conduct
The controllers and processors may draw up codes of conduct to facilitate the effective application of the GDPR and regulate the obligations of the controllers and processors. Such codes shall take into consideration the specific characteristics of the processing carried out in each different sector and the specific needs of micro, small and medium enterprises. The monitoring of the compliance with a code of conduct may be carried out by a body which has an appropriate level of expertise and is accredited for that purpose by the competent supervisory authority.
For the purpose of demonstrating compliance with the Regulation, the GDPR provides for the establishment of data protection certification mechanisms and of data protection seals and marks. A certification is voluntary and may be issued by the certification bodies or by the competent supervisory authority or by the Board to a controller or processor for a maximum period of three years and may be renewed. The Board shall publish all certification mechanisms and data protection seals and marks in a register.
Transfers of personal data to third countries or international organisations
The GDPR, similarly to the previous legal framework, allows the transfers of personal data to third countries or international organisations only if these implement an adequate level of protection similar to EU's. The European Commission may decide with effect for the entire EU that certain third countries or international organisations meet the said standards. In case of absence of an adequacy decision, the controller or processor should take measures to ensure appropriate safeguards of the data subject whose personal data are being transferred. A group of undertakings or enterprises engaged in a joint economic activity may make use of approved binding corporate rules for transfers within the group.
Infringements of several provisions of the GDPR shall amount to administrative fines up to €20,000,000 or in the case of an undertaking, up to 4% of the total worldwide annual turnover of the preceding financial year, whichever is higher. Such infringements include processing without clear affirmative consent act, non-compliance with an order by the supervisory authority or with the requirements relating to international transfers of personal data. Other violations of provisions which, for instance, refer to the tasks of the data protection officer or to child's consent shall attract administrative fines up to €10,000,000 or in the case of an undertaking, up to 2% of the total worldwide annual turnover of the preceding financial year, whichever is higher. In assessing the level of the penalty, the GDPR provides for specific factors to be taken into account, such as the nature, gravity and duration of the violation, any relevant previous violations by the controller or processor or the categories of personal data affected.
The standards of protection of personal data have been undoubtedly raised and enhanced with tools which ensure privacy throughout the social networks and cloud providers. The controllers and processors must take significant efforts to comply with the provisions of the GDPR. The high amounts of fines imposed to those who do not comply are significantly influential and deterrent.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.