The General Data Protection Regulation (GDPR)
Privacy and data protection are fundamental human rights in the European Union (EU), protected by law.
On May 25, 2018, the General Data Protection Regulation will take effect in the EU, replacing all the existing data protection laws, such as the Data Protection Act 1998(DPA) in UK with one coherent data protection framework.
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 organizations to be more accountable for data privacy and protection.
The GDPR - what it means for companies in Asia Pacific
The GDPR applies to any company processing and storing the personal data of EU residents, irrespective of company 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. Companies 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 however not just a matter of ticking a few boxes; the Regulation demands that you be able to demonstrate compliance with the data protection principles. This involves taking a risk-based approach to data protection, ensuring appropriate policies and procedures are in place to deal with the transparency, accountability and individuals’ rights provisions, as well as building a workplace culture of data privacy and security.
In some cases, the GDPR compliance steps will supplement existing measures that many organizations adopt as a matter of good practice or to comply with national laws, for example The Privacy Act 1998 (Australia), the Personal Data Protection Act (Singapore), the Personal Data (Privacy) Ordinance (Hong Kong) and the Cyber Security Law (China).
With the appropriate data protection compliance framework in place, not only will you be able to avoid significant fines and reputational damage, you will also be able to show customers that you are trustworthy and responsible, and derive added value from the data you hold.
The business benefits of the GDPR
- Build customer trust
- Improve brand image and reputation
- Improve data governance
- Improve information security
- Improve competitive advantage
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 organizations located in the EU. If a company in the Gulf 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. The mere accessibility of the company's website from the EU will not be sufficient to trigger the application of the GDPR. For the new 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 tracking internet users, for example through advertising technology platforms, to profiling and analysing their preferences, behaviours and attitudes.
Asia-Pacific companies not established in the EU but meet one of the above qualifying factors must in some circumstances appoint a representative based in the EU as the contact person for all questions on data protection from consumers and data protection supervisory authorities. The appointment of 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 organization 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 in Asia Pacific.
Data protection principles
Personal data must be processed according to the six data protection 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:
- The establishment of a governance structure with roles and responsibilities.
- Keeping a detailed record of all data processing operations.
- The documentation of data protection policies and procedures.
- Data protection impact assessments (DPIAs) for high-risk processing operations. Learn more >>
- Implementing appropriate measures to secure personal data.
- 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 will 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 EU
The transfer of personal data outside the EU 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.
- Individuals impacted should be told where there exists 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 high-risk processing; 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:
- 1) Up to €10 million, or 2% annual global turnover – whichever is higher
- 2) Up to €20 million, or 4% annual global turnover – whichever is higher
The fines are based on the specific Articles of the Regulation that the organization has breached. Infringement of the organization’s obligations, including data security breaches, will be subject to the lower level, whereas infringements of an individual’s privacy rights will be subject to the higher level.
Liability for damages
The GDPR also gives individuals the right to compensation of 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 become compliant, 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 organizations globally 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
Speak to an advisor
Please contact our GDPR team for advice and guidance on our products and services
Call: 00 800 48 484 484