Data Protection& EU Regulations

2016

Webinar Presenters

Miles Maier @LasaICT

Paul Ticher @PaulTicher

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Paul Ticher

• Data Protection expert, author and trainer• Specialist in information management and

systems• Many charity clients

Twitter: @PaulTicher

Data Protection:The new EU Regulation

12th May 2016

This presentation is intended to help you understand aspects of the EU General Data Protection Regulation and related legislation.It is not intended to provide detailed advice on specific points, and is not necessarily a full statement of the law.

Protecting people

Protecting data

What Data Protection is about: 1

Privacy & choice

Give us more

money! Support

our campaign!

But of course we told your

social worker

What Data Protection is about: 2

Right of Subject Access

Individual rights, such as:

Right to opt out of direct marketing

Right to compensation for harm

What Data Protection is about: 3

The current legal framework

EC Directive 95/46/EC Data Protection Act 1998 Similar legislation in most other European countries

Privacy & Electronic Communications (EC Directive) Regulations 2003

Non-statutory Guidance and Codes of Practice, including: Information Commissioner Institute of Fundraising

The new Regulation

First draft January 2012Extensive negotiations between Commission,

Parliament and Council over nearly four years

Final agreed draft December 2015Published May 2016 (Reg. 2016/679)Coming into force 25th May 2018

It’s a Regulation, not a Directive

Themes

“The processing of personal data should be designed to serve [hu]mankind” (Recital 4)

More control over online services and large commercial organisations, especially multinationals

Emphasis on reducing riskLimited extension of individual rightsData Controller evidence of compliance

Main changes include:

Definition of consent tightened up … but still not always required

Tighter rules on children’s data (under 16), especially online More transparency requirements Data minimisation and pseudonymisation More rights to have data erased Provision for allocating responsibilities between joint Data

Controllers Data Processors carry more direct responsibilities No registration: Data Controller has to keep records Requirement to notify serious breaches Bigger fines Additional responsibilities on large organisations and those

doing riskier processing

Consent

Consent is “any freely given, specific, informed and unambiguous indication of his or her wishes by which the data subject, either by a statement or by a clear affirmative action, signifies agreement to personal data relating to them being processed” (Article 4(11))

“Where processing is based on consent, the controller shall be able to demonstrate that consent was given by the data subject … ” (Article 7(1))

“Silence, pre-ticked boxes or inactivity should … not constitute consent.” (Recital 32)

When is consent not required?

Similar conditions to now, including:Processing is lawful [if it is] “necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. …” (Article 6(f) )“The processing of personal data for direct marketing purposes may be regarded as carried out for a legitimate interest.” (Recital 47)

Where does this leave fundraising?

Definitions unclear: when does a communication become marketing?

How does the fundraising Code relate to the marketing provisions of the Regulation?

New Regulation does not rescind PECRTherefore, consent is likely to remain the

only reliable basis for most direct unsolicited fundraising

Consent has to involve “clear affirmative action”

Therefore, are we looking at opting in only?

Tighter rules on children’ data

Children deserve specific protection … as they may be less aware of risks, consequences, safeguards and their rights … . This concerns especially the use of personal data of children for the purposes of marketing or creating personality or user profiles and the collection of child data when using services offered directly to a child. … (Recital 29)

Where [consent] applies, in relation to the offering of information society services directly to a child, the processing of personal data of a child below the age of 16 years … shall only be lawful if … consent is given … by the holder of parental responsibility over the child.

More transparency requirements

(Articles 13 & 14)

Data Subjects must usually be made aware of: the identity and the contact details of the controller the purposes as well as the legal basis of the

processing where relevant the legitimate interests

any recipient(s); any overseas transfers the storage period or criteria for deletion right of access to data and rectification or erasure right to withdraw consent at any time the right to lodge a complaint to a supervisory

authoritywhether the provision of personal data is

[contractually] required [or] the data subject is obliged to provide the data and … possible consequences of failure to provide [it]

Minimisation and pseudonymisation

Principle 3 now says data must be: “adequate, relevant and limited to what is necessary … (“data minimisation”)”

Data protection by design and by default (Article 25) stresses pseudonymisation as a security measure – especially for things like ‘big data’ analysis

Pseudonymisation means that the person is still identifiable but their identity can only be retrieved with the use of additional data which is held separately and securely

Rights to erasure, etc.

Data Subjects have the rights to require:Rectification of inaccurate data (Article 16)Completion of incomplete data (Article 16)Erasure (“right to be forgotten”), with

exceptions, but including removal of links (Article 17)

Restriction of processing in certain cases (Article 18)

Compensation for “material or non-material damage” (Article 82)

Also the right to complain to the supervisory authority

Data Controller responsibilities

Technical and organisational measures to ensure full compliance (Article 24)

Appropriate policies (including Data Protection by design and by default) (Articles 24 & 25)

Records of processing – what, who, how, etc. (Article 30)… but no registration (notification)

Joint Controllers must transparently “determine their respective responsibilities” – but each can be “liable for the entire damage” caused by a breach (Articles 26 & 82)

Data Processor responsibilities

(Article 28)

Data Controller still has responsibility to select competent Processors

More detailed rules about what has to be in the contract

Standard contracts should be availableProcessor may be liable for breaches and

other compliance (many obligations refer to the “controller or processor” – including processors based overseas)

Notification of serious breaches

(Article 33)

Must report (preferably within 72 hours) unless the breach is unlikely to result in a risk to individuals

Individuals must usually be notified where the breach is likely to result in a high risk to them

Processors must notify breaches to Controllers

Penalties(Article 79)

Breaches subject to two levels of penalty, depending on the breach:€10 million or 2% of total worldwide turnover€20 million or 4% of total worldwide turnover

(whichever is higher, in each case)

Large organisations & riskier activities

Impact assessments before starting innovative processing (Article 35)

Data Protection Officer, with specified competence and duties (Articles 37– 39)

Selected other changes

Overseas transfers – slight loosening of the conditions that legitimise transfers (Article 49)

Jurisdiction over multi-national companies operating into Europe (including web-based) (Recital 101)

Scope for national variations in a number of places

Many thanks

Any questions, clarifications, feedback:

paul@pauticher.com

Follow-up questions:paul@paulticher.com

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