This overview highlights the key themes of the General Data Protection Regulation (GDPR) to help organisations understand the new legal framework in the EU. It explains the similarities with the existing UK Data Protection Act 1998 (DPA), and describes some of the new and different requirements.
When the ICO started drafting this overview, the GDPR was on track to apply in the UK from May 25 2018 and organisations would have to comply with it from that date. The ICO had started to produce a set of guidance on GDPR, and this overview was to be the first substantive part of that. The result of the 23 June 2016 referendum on membership of the EU now means that the Government needs to consider the impact on the GDPR.
However, we still think it will be useful to publish this overview. This is because once implemented in the EU, the GDPR will be relevant for many organisations in the UK – most obviously those operating internationally. The other main reason is that the GDPR has several new features – for example breach notification and data portability. Therefore we thought it would still be useful to familiarise information rights professionals with the GDPR’s main principles and concepts.
With so many businesses and services operating across borders, international consistency around data protection laws and rights is crucial both to businesses and organisations, and to consumers and citizens. The ICO’s role has always involved working closely with regulators in other countries, and that will continue to be the case. Having clear laws with safeguards in place is more important than ever given the growing digital economy, and we will be speaking to government to explain our view that reform of UK data protection law remains necessary.
This overview is for those who have day-to-day responsibility for data protection.
Who does the GDPR apply to?
- The GDPR applies to ‘controllers’ and ‘processors’. The definitions are broadly the same as under the DPA – ie the controller says how and why personal data is processed and the processor acts on the controller’s behalf. If you are currently subject to the DPA, it is likely that you will also be subject to the GDPR.If you are a processor, the GDPR places specific legal obligations on you; for example, you are required to maintain records of personal data and processing activities. You will have significantly more legal liability if you are responsible for a breach. These obligations for processors are a new requirement under the GDPR.
However, if you are a controller, you are not relieved of your obligations where a processor is involved – the GDPR places further obligations on you to ensure your contracts with processors comply with the GDPR.
- The GDPR applies to processing carried out by organisations operating within the EU. It also applies to organisations outside the EU that offer goods or services to EU citizens.
- The GDPR does not apply to certain activities including processing covered by the Law Enforcement Directive, processing for national security purposes and processing carried out by individuals purely for personal/household activities.
What information does the GDPR apply to?
Like the DPA, the GDPR applies to ‘personal data’. However, the GDPR’s definition is more detailed and makes it clear that information such as an online identifier – eg an IP address – can be personal data. The more expansive definition provides for a wide range of personal identifiers to constitute personal data, reflecting changes in technology and the way organisations collect information about people.
For most organisations, keeping HR records, customer lists, or contact details etc, the change to the definition should make little practical difference. You can assume that if you hold information that falls within the scope of the DPA, it will also fall within the scope of the GDPR.
The GDPR applies to both automated personal data and to manual filing systems where personal data are accessible according to specific criteria. This is wider than the DPA’s definition and could include chronologically ordered sets of manual records containing personal data.
Personal data that has been pseudonymised – eg key-coded – can fall within the scope of the GDPR depending on how difficult it is to attribute the pseudonym to a particular individual.
Sensitive personal data
The GDPR refers to sensitive personal data as “special categories of personal data” (see Article 9). These categories are broadly the same as those in the DPA, but there are some minor changes.
For example, the special categories specifically include genetic and biometric data, where processed to uniquely identify an individual.
Personal data relating to criminal convictions and offences are not included, but similar extra safeguards apply to its processing (see Article 10).