The General Data Protection Regulation (GDPR)
Privacy and data protection are fundamental human rights protected by law in the European Union (EU).
The General Data Protection Regulation (GDPR) replaced existing data protection laws across the EU on 25 May 2018.
Significant and wide-reaching in scope, the new law brings a 21st-century approach to data protection. It expands the rights of EU residents to control how their personal information is collected and processed, and places a range of new obligations on organisations to be more accountable for data privacy and protection.
The GDPR – what it means for companies in the Asia-Pacific region
The GDPR applies to any organisation collecting, storing or processing EU residents’ personal data, irrespective of the organisation’s location or where the data is processed. Asia-Pacific companies with any connection to Europe – whether through subsidiaries, customers or suppliers – stand to be affected. Organisations should therefore take steps to determine whether the GDPR is applicable, and to consider revising their information handling processes to ensure compliance.
GDPR compliance is not just a matter of ticking a few boxes, though: the Regulation also demands that you be able to demonstrate compliance with the data processing principles. Compliance involves taking a risk-based approach to data protection, ensuring appropriate policies and procedures are in place to deal with the requirements for transparency and accountability, and to protect individuals’ rights, as well as building a workplace culture of data privacy and security.
In some cases, GDPR compliance will build on existing measures that many organisations adopt as a matter of good practice or to comply with national laws, such as the Privacy Act 1988 (Australia), the Personal Data Protection Act (Singapore), the Personal Data (Privacy) Ordinance (Hong Kong) and the Cybersecurity Law (Mainland China).
With the appropriate data protection compliance framework in place, not only will you be able to avoid significant fines and reputational damage but you will also be able to show customers that you are trustworthy and responsible, and derive added value from the data you hold.
Free GDPR resources
Learn more about the steps you need to take to prepare for the GDPR and demonstrate compliance. See checklist >>
The key elements of the GDPR
The GDPR applies to personal data. This is any information that can directly or indirectly identify a natural person, and can be in any format. It can include social media posts, photographs, lifestyle preferences, transaction histories and even IP addresses.
The Regulation places much stronger controls on the processing of special categories of personal data. The inclusion of genetic and biometric data is new.
Online behaviour (cookies)
Profiling and analytics data
of personal data
Trade union membership
The GDPR does not merely apply to organisations located in the EU. If a company in the Asia-Pacific region processes personal data through a business establishment in the EU or in the course of one of the following activities, it must comply with the Regulation:
- Offers goods or services to people in the EU. Simply being able to access the company's website from the EU will not be sufficient to trigger the application of the GDPR, however. For the Regulation to apply, the company must clearly intend to offer services to individuals located in the EU.
- Monitors the behaviour of individuals in the EU. This includes a host of activities, from tracking Internet users, such as through advertising technology platforms, to profiling and analysing their preferences, behaviours and attitudes.
Asia-Pacific companies not established in the EU that meet one of the above qualifying factors may have to appoint a representative based in the EU as the contact person for all questions on data protection from consumers and data protection authorities. A representative will not be required where processing is occasional or does not include large-scale processing of special categories of data.
Service providers (data processors) that process data on behalf of an EU organisation also come under the remit of the GDPR and will have specific compliance obligations. An example might be a company that processes payroll or a Cloud provider that offers data storage, even if the server sits outside the EU.
Data protection principles
Personal data must be processed according to the six data processing principles:
- Processed lawfully, fairly and transparently.
- Collected only for specific legitimate purposes.
- Adequate, relevant and limited to what is necessary.
- Must be accurate and kept up to date.
- Stored only as long as is necessary.
- Ensure appropriate security, integrity and confidentiality.
Accountability and governance
You must be able to demonstrate compliance with the GDPR:
- Establish a governance structure with roles and responsibilities.
- Keep a detailed record of all data processing operations.
- Document data protection policies and procedures.
- Perform data protection impact assessments (DPIAs) for high-risk processing operations.
- Implement appropriate measures to secure personal data.
- Provide staff training and awareness.
- Where necessary, appoint a data protection officer.
Data protection by design and by default
There is a requirement to build effective data protection practices and safeguards from the very beginning of all processing:
- Data protection must be considered at the design stage of any new process, system or technology.
- A DPIA is an integral part of privacy by design.
- The default collection mode must be to gather only the personal data that is necessary for a specific purpose.
You must identify and document the lawful basis for any processing of personal data. The lawful bases are:
- Direct consent from the individual;
- The necessity to perform a contract;
- Protecting the vital interests of the individual;
- The legal obligations of the organisation;
- Necessity for the public interest; and
- The legitimate interests of the organisation.
There are stricter rules for obtaining consent:
- Consent must be freely given, specific, informed and unambiguous.
- A request for consent must be intelligible and in clear, plain language.
- Silence, pre-ticked boxes and inactivity no longer suffice as consent.
- Consent can be withdrawn at any time.
- Consent for online services from a child under 13 is only valid with parental authorisation.
- Organisations must be able to evidence consent.
Privacy rights of individuals
Individuals’ rights are enhanced and extended in a number of important areas:
- The right of access to personal data through subject access requests.
- The right to correct inaccurate personal data.
- The right in certain cases to have personal data erased.
- The right to object.
- The right to move personal data from one service provider to another (data portability).
Transparency and privacy notices
Organisations must be clear and transparent about how personal data is going to be processed, by whom and why.
- Privacy notices must be provided in a concise, transparent and easily accessible form, using clear and plain language.
Data transfers outside the EEA
The transfer of personal data outside the EEA is only allowed:
- Where the EU has designated a country as providing an adequate level of data protection;
- Through model contracts or binding corporate rules; or
- By complying with an approved certification mechanism, e.g. EU-US Privacy Shield.
Data security and breach reporting
Personal data needs to be secured against unauthorised processing and against accidental loss, destruction or damage.
- Data breaches must be reported to the data protection authority within 72 hours of discovery.
- Affected individuals should be notified, where there is a high risk to their rights and freedoms, e.g. identity theft, personal safety.
Data protection officer (DPO)
The appointment of a DPO is mandatory for:
- Public authorities;
- Organisations involved in ”regular and systematic monitoring of data subjects on a large scale”; and
- Organisations processing special categories of data.
A DPO has set tasks:
- Inform and advise the organisation of its obligations.
- Monitor compliance, including awareness raising, staff training and audits.
- Cooperate with data protection authorities and act as a contact point.
GDPR enforcement and penalties
The GDPR has attracted media and business interest because of the increased administrative fines for non-compliance.
The administrative fines are discretionary rather than mandatory; they must be imposed on a case-by-case basis and must be “effective, proportionate and dissuasive”.
The costs of non-compliance
There are two tiers of administrative fines that can be levied:
- Up to €10 million, or 2% annual global turnover – whichever is greater
- Up to €20 million, or 4% annual global turnover – whichever is greater
The fines are based on the specific articles of the Regulation that the organisation has breached. The higher tier will be levied for failure to comply with the data processing principles and infringements of a data subject’s rights.
Liability for damages
The GDPR also gives individuals the right to compensation for any material and/or non-material damages resulting from an infringement of the GDPR. In certain cases, not-for-profit bodies can bring representative action on behalf of individuals. This opens the door for mass claims in case of large-scale infringements.
For some practical guidelines on how to comply, please read our key steps to GDPR compliance. See checklist >>
How IT Governance can help you get GDPR-ready
IT Governance, a leading global provider of IT governance, risk management and compliance solutions, is at the forefront of helping organisations around the world address the challenges of GDPR compliance.
We offer comprehensive solutions, services and expertise to help you meet your GDPR compliance objectives.
Staff awareness training
Compliance toolkits and software
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Please contact our GDPR team for advice and guidance on our products and services
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