General Data Protection

Regulations: Key Articles Overview

Craig Clark Information Security & Compliance Manager

UNIVERSITY OF EAST LONDON – LONDON’S LEADING UNIVERSITY FOR CIVIC ENGAGEMENT

Topics• What is the GDPR• European Law Landscape • Key dates • GDPR Structure• What is Personally Identifiable Information?• Territorial Scope - Articles 1-3• Remedies, Liabilities and Penalties - Articles 79, 82 & 83 • Data Collection Principles - Article 5• Lawfulness Articles - 5 & 6• Consent - Articles 7-9• Transparency - Articles 12-18• Data Security - Article 32• Data Breach Notification - Articles 33 & 34

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What is the GDPR• A complete overhaul of data protection regulation with

extensive updates of what can be considered identifiable information

• Applies across all member states of the European Union• Applies to all organisations processing the data of EU data

subjects –wherever the organisation is geographically based • Specific and significant rights for data subjects to seek

compensation, rights to erasure and accurate representation • Compensation can be sought against organisations and

individuals employed by them• Fines of up €20,000,00 or 4% global annual turnover • Significant reduction in that amount based on the

implementation of technical, or organisational controls implemented

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European Law Landscape

European Legislation can be separated into two main branches:Directives• Require individual implementation in each Member State (Each

State can implement rules in their own way)• Implemented by the creation of national laws approved by the

parliaments of each Member State• European Directive 95/46/EC (The current Data Protection Act)

is a Directive• Sets out a goal that a member state must achieve –room for

tailoring• 28 different variations among Member States

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European Law Landscape

Regulations:• Immediately applicable in each Member State in a uniform manner• Binding Legislative Act • Derogations allow for fine tuning, examples include the age of a child,

and the definition of large scale data processing • EUGDPR is a Regulation• Regulations are not negotiable by member states • Regulations may apply to countries outside the EU if they affect EU

subjects (people who are originally from the EU)

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Key Dates for GDPR4 May 2016, the official text of the Regulation was published in the EU Official Journal in all the official languages.The Regulation entered into force on 24 May 2016, and applies from 00:01 25 May 2018. As it stands the United Kingdom will still be considered a Member State at the time of inception and will therefore be subject to the requirements of the EUGDPRThis Regulation shall be binding in its entirety and directly applicable in all Member States.

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GDPR Structure

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European Data Protection Board

Lead Supervising Authority (Information Commissioners Office)

Data Processor

Data Controller

(Organisation)Data Subject(Individuals)

3rd Countries 3rd Party

GDPR Structure• The European Data Protection Board will issue

guidance for controllers and processors• They will facilitate the use of Data Protection

Impact Assessments • The ICO will oversee both Data Controllers and

Data Processors • Breaches and Notifications will be made to the

ICO• 3rd Countries – countries to which data is

transferred • At the centre of the GDPR is the protection of

Personally Identifiable Information

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Personally Identifiable Information

Can be defined as Information that can be used to identify a living individual. Examples include (but are not limited to):

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First & last name (combined) Home address Date/place of birth

Photos and videos Username/password National insurance/Social security Number

Bank account details Credit card details Passport number

Medical records Financial records Non work related correspondence

Personal email addresses/emails

Biometric data Cookies

MAC Address IP Address

High Risk Personal Information

Other information, while not individually useful as identifiable has been defined as high risk and as such breaches involving high risk data should be notified. High Risk data includes • Racial and Ethnic Origin Trade Union Membership• Religion Political Opinion• Healthcare Data Genetic Data• Sexual Orientation Location Data • Disability Information Biometric Data

• Mental Health Status• Gender UNIVERSITY OF EAST LONDON – LONDON’S LEADING UNIVERSITY FOR CIVIC ENGAGEMENT

Territorial ScopeArticles 1-3 cover the applicability of the Regulation • Data Subjects = living individuals aka natural

persons. They have rights associated with:- The protection of personal data- The protection of the processing of personal

data- Unrestricted movement of personal data

throughout the European Union (with consent)• The scope of the GDPR includes personal data that is

wholly or partly by automated means and personal data that is part of a filing system (or is intended to be)

• Any organisation that processes the data of EU citizens, are subject to the Regulation

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Remedies, Liabilities & Penalties

• Enforcement powers of ICO will be significantly enhanced with the issuing of measures, notices and monetary fines intended to be effective, proportionate and dissuasive

• Fines can be up to €10,000,000 for enterprise or 2% total worldwide turnover for the preceding year, whichever is greater

• Fines are calculated based on several factors: - Controls already in place

- Nature, gravity, extent and duration of infringement- The types of personal data involved in the infringement- Actions taken by the controller or processor to mitigate,

negate or notify affected parties (including the ICO) of a breach

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Remedies, Liabilities & Penalties

• Data Subjects have the right to effective judicial remedy against a controller or processor when the rights of the data subject has been infringed as a result of processing

• Action can be sought either:- In the courts of a Member state where

the processor has an establishment

- In the courts of a Member state where the subject habitually resides

- Against a controller for the inadequate control of data or a processor for processing

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Data Collection Principles

The GDPR sets out 7 key principles for the collection of data:• Data must be processed lawfully fairly and in a

transparent manner • Data must only be collected for specified explicit and

legitimate purposes • Collected data must be adequate, relevant and limited to

what is necessary• Collected data must be accurate, and where necessary

kept up to date• Data must be retained only as long as necessary• Data must be processed securely• There must be accountably in all processing activity

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Lawfulness of Processing

The Regulation introduces the concept of Lawfulness and places specific obligations on the controller and processor: • Data must be secured against accidental loss, damage or

destruction• Processing must be lawful which means inter alia:

- Data subject must provide explicit consent for processing for each service

- The processing to be performed is necessary for the performance of a contract

- processing is necessary for compliance with a legal obligation • Controllers have one month to process Subject Access

Requests – no charges (unless vexatious) UNIVERSITY OF EAST LONDON – LONDON’S LEADING UNIVERSITY FOR CIVIC ENGAGEMENT

Lawfulness of Processing

The regulation seeks to clearly distinguish between the obligations placed upon controllers and processors.• Processors and Controllers must now have a legally binding

contract• Controllers responsible for ensuring processors comply with

contractual terms for processing information• Processors, like controllers, are required to implement

appropriate security measures• The lead processor is required to reflect the same contractual

obligations it has with the controller in a contract with any sub-processors and remains liable to the controller for the actions or inactions of any sub-processor.

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Consent• Consent must be clear and affirmative – no action on behalf of

the data subject no longer implies consent• Controllers must be able to demonstrate that consent was

given in a clear, intelligible and easily accessible way or else it is not binding

• It must be possible for data subjects to withdraw consent at any time and must be as easy to withdraw as it is to give. This has significant implications on how data is processed

• Special conditions for children under the age of 16 • Separate, explicit consent must be given for high risk personal

data along with an outline of what the controller intends to do with it in terms of processing (except in protecting the public interest)

• All information should be secured UNIVERSITY OF EAST LONDON – LONDON’S LEADING UNIVERSITY FOR CIVIC ENGAGEMENT

TransparencyNew obligations placed on controllers on how they interact with data subjects • Any communications need to be concise, transparent and

intelligible • Controllers must provide clear unambiguous information about

how and why a subjects’ data is collected and processed• Controllers have an obligation to proactively provide

information about individuals within the organisation including the Data Controller and the Data Protection Officer and the specific rights a subject has

• If data has been obtained indirectly (e.g. a mailing list), Controllers must take specific steps to notify affected subjects

• All data subjects have rights to access their data including the right of erasure, the right of transfer and the right of accuracy

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Data SecurityA requirement on controllers and processors to implement a level of security appropriate to the risk. Techniques:• Pseudonymisation - Separation of data from direct identifiers

so that linkage to an identity is not possible without additional information that is held separately.

• Encryption - Conversion of electronic data into another form, called ciphertext, which cannot be easily understood by anyone except authorised parties.

• Minimisation - Reducing the data collection to the minimum required to deliver the service agreed by the data subject

• Penetration Testing - Agreeing a process for regularly testing assessing and evaluating the effectiveness of security measures

• Ensuring ongoing application of confidentiality, integrity and availability controls

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Data Breach Notification

The GDPR stipulates specific requirements for breach notificationThe legislation defines a breach as:“a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, personal data transmitted, stored or otherwise processed.”• Processors must notify Controllers of any breach • Controllers must notify the Lead Supervisory Authority of high

risk breaches without undue delay and where feasible not later than 72 hours after becoming aware of it

• How and when a notification is made has a significant impact on mitigation from the Lead Supervisory Authority

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Notification Requirements

• Notification to the ICO without undue delay (within 72 Hours)• Description of the nature of breach• Specify categories of data subjects (gender, adult or child,

patient, student etc.)• The number of data subjects affected • The number of personal records breached • The likely implications of the breach• Details of Data Protection Officer • The measures taken to mitigate• Currently no requirement to notify if the breach is not

considered high risk and the breach is unlikely to impact the rights and freedoms of data subject (guidance on what constitutes high risk to be confirmed)

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Notification Requirements

When a high risk breach has occurred, the data controller has specific obligations regarding communication to affected data subjects• Communication can be mandated by the supervisory authority• Communication must be carried out without undue delay• Communication must be in clear, plain language• Exceptions if appropriate measures have been implemented to

minimise risk • Exceptions if communication would involve disproportionate

effort compared to risk

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Why this is Important

Between January – March 2016 the ICO was notified of 448 significant data breaches. Now more than ever before, the ethos needs to be that we will be breached eventually, and we need to prepare for that eventuality.

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