What should you remember with regard to GDPR to avoid negative implications for your business?
In May 2018 the European Union will pass the up-to-date rules for personal data processing implemented by the General Data Protection Regulation (ЕС 2016/67 of 27 April, 2016) ("GDPR"). The above Regulation, which comes into direct effect in all 28 countries of the EU, will replace Directive 95/46/EC. GDPR was adopted on 27 April, 2016, but it will come into effect after a two year transition period – on 25 May, 2018. Unlike a directive, GDPR does not require national governments to embody its provisions into the national legislation of Member States as it is binding and directly applicable.
In our previous article ( GDPR: What do you need to know) we considered some important questions, particularly to which entities GDPR shall apply, what personal data under GDPR includes, which key changes have been implemented with adoption of GDPR, including some new rights of users, what are the penalties for not complying with the Regulation, etc. The necessary information may be found here insert the link to the previous article. In this article we are continuing to consider key aspects of GDPR and give you valuable tips with respect to compliance with the new Regulation so as avoid any negative effects for your business.
What are the main principles implemented by the General Data Protection Regulation?
The general approach to the processing of personal data is embodied in 6 core principles listed below:
- Legitimacy, fairness and transparency. Personal data shall be processed based on these principles. Any information of purposes, means and scope of processing the personal data shall be stated in a simple and clear way.
- Limitation of purpose. The personal data shall be collected and used exclusively for those purposes which were declared by the company (online service) in the process of data collection.
- Minimization of personal data. Personal data may not be collected in a greater scope than it is required for the purposes of processing of personal data.
- That personal data which is inaccurate will be erased or corrected (upon request of the owner).
- Limitation of storage. Personal data will be stored in a form which enables the identification of the data's subject for a term not longer than it is required for the purposes of processing personal data.
- Entirety and confidentiality. While processing the personal data of users, companies are required to secure the protection of the personal data from unauthorized or unlawful processing, storage or usage.
Which processing of the personal data will be regarded as lawful
The processing of personal data will be considered lawful where:
- The data subject gives its consent for one or more particular purposes;
- Processing is required for the performance of a contract to which the subject data is a party, or in order to take steps at the request of the data subject prior to entering into a contract;
- The processing is required for compliance with the legal obligation of the controller;
- The processing is required for completion of particular tasks and will be carried out for the benefit of the public interest or for exercising the controller's functions;
- The processing is required for other lawful purposes.
Who are the controller and processor of personal data under GDPR (Art. 4 (7) and (8))?
The "controller" is the individual or legal entity, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of processing of personal data. The controller uses the personal data for the attainment of particular business objectives.
The "processor" is the individual or legal entity, public authority, agency or other body which processes personal data on behalf of the controller. This definition includes auxiliary services such as Google, Amazon, Fabric, HockeyApp and others, like outsourcing companies.
How can you make sure that your company complies with GDPR and avoid any negative effects for your business?
Below you may find some useful tips for your company on how to comply with GDPR:
- Apply only the "consent" concept. Such consent shall be expressed by a customer (user) as a direct confirmation by making an active choice. The consent will not be recognised as appropriate where a customer was unable to make an active choice or to revoke consent (for instance, the "unsubscribe" option will be available) or if such consent has a form of implied consent or inactivity. An option to give or revoke consent must be easily found on the website of the provider of the goods or services.
- Consider whether you really need all the data collected through your company's website. It is highly recommended that you minimize the scope of personal data which you collect, store and process.
- After making payment do not store the personal data of your customers. It is advised that all internal processes of the website are rearranged in order to secure the deletion of all personal data which is no longer required. This is also the case for "unsubscribers" – it is advisable to delete their personal data as soon as they express the intention to not use the goods and services or no longer receive information.
- Do not keep track of the behavior of your users. Such monitoring includes "tracking" their "behavior" on the Internet for all purposes (for instance, in order to complete "social portraits" so as to study and forecast their consumer choices). With GDPR taking effect, such activities are subject to the express and clear consent of customers, otherwise it will be regarded as unlawful.
- Identify to your clients any transfer by you of their personal data to third parties. Such identification must be clear and detailed and the option for a customer to give or deny consent will be made available in this case.
- Consider the possibility of avoiding data loss or disclosure using end-to-end ciphering. Based on the said method the data may be deciphered only on the device of the client by using clients' keys. This method is quite expensive though it is effective. In addition, you may use alternative cheaper methods.
- Ask your clients to provide their consent in parts. Separate the form of consent in your website for different purposes. For instance, consent for advertisements, consent for the processing of personal data and the consent to keep track of the behavior of clients will be obtained through three different steps by three separate sections in the form of consent.
Will GDPR be applied to Facebook and its customers?
Yes, GDPR will obviously be applied to Facebook and to connected relations. Facebook announced that all the companies which place advertisements through Facebook may continue using the platforms and solutions of Facebook in the same way as they do so at the present time. However, every such company is required to meet the requirements of GDPR. Although Facebook generally operates its services as a controller, in some cases when cooperating with companies and other third parties it may act as a processor of personal data. In this case Facebook processes data on behalf of your company, and your company will have legal grounds for such processing and the transfer of data to Facebook (e.g. Workplace from Facebook; measurement of effectiveness and coverage of your advertising campaigns and provision of traffic statistics and reporting to your company). In addition, Facebook has developed its own instruments to secure and protect the personal data of its users.
Please take into account that the above-mentioned information serves exclusively as a general overview of European data protection legal requirements implemented by GDPR 2018.
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.