The GDPR is Coming: How to Get ReadyApril 17th, 2018
By Danielle Miller Olofsson, Chief, Knowledge Management and Market Strategies.
To begin with, the General Data Protection Regulation ("GDPR") is a logical extension of EU Directive 95/46/EC (the "Directive") that already placed limits on the data organisations could collect, the means they used to do so, the time for which they could keep the information, and the jurisdictions to which data could be transferred. Since the Canadian Personal Information Protection and Electronic Document Act ("PIPEDA") was enacted largely in response to the Directive, organisations that are already PIPEDA compliant will invariably have to tighten their practices to comply with the GDPR but they are by no means starting from scratch.
The most demanding elements of the GDPR
Some of the most demanding features of the GDPR for organisations seeking to conduct business in Europe are:
Shift in the burden of proof: a suspected breach is not required for a national privacy commission to audit an organisation. The commission can audit at any time and the organisation must prove it is compliant.
Security by default: data controllers (those collecting the data) are required to take measures to ensure that, by default, only data necessary for the specific purpose of the processing are in fact processed.
Security by design: any information system put in place to collect, use or store data must, at the time of design, be conceived so as to be GDPR compliant.
Data subject’s rights: the GDPR provides the data subject (the person whose information is being collected) with many rights, some of which include the right to be completely and accurately informed of the use to which their information will be put and the organisation’s obligation to obtain the data subject’s explicit consent before processing. In addition to the rights to access and rectification, that previously existed in Europe and that exist in Canada, the data subject also has the right to request that information be erased. This "right to be forgotten" is still being debated in Canada and a decision by the Quebec privacy commission suggests that it does not exist in Quebec.
Data portability: the data subject has the right to request that all the information that a data controller has collected on them be transmitted to the subject in a structured, commonly used, and machine-readable format so that they can transmit it to another data controller.
Joint responsibility for supplier or subcontractor breach: an organisation cannot plead that it did not know that a supplier or subcontractor was not compliant. Nor can it simply rely on a vague letter confirming compliance. Organisations have the obligation to conduct a satisfactory inquiry into their suppliers’ or subcontractors’ compliance even if this means asking for a privacy audit.
Penalties: depending on the nature of the breach, an organization may be liable for a variety of penalties reaching up to the higher of 20 million euros or 4% of their total annual worldwide turnover. There are many considerations, however, that will be taken into account in assessing the level of the penalties.
Measures to be taken to comply
In light of the above, the following are some measures that an organisation should take to become compliant:
Designate a person in the organisation who will be responsible for data protection and compliance.
Conduct a mapping: identify the information collected by your organisation that could trigger the application of the GDPR. Given the broad definition of personal information in the GDPR, it is unlikely that the regulation is not triggered.
Develop a data processing register: establish the types of information you collect (HR, client information, supplier information, etc.) and for each type, establish how you collect, use, store and communicate this information.
Ensure supplier and subcontractor compliance.
Store and process the information in such a way as to respect the data subject’s rights: in the event the data subject requests all their information, it must be easy to locate and communicate. Likewise if organizations receive a take-down request, they must be ready to respond rapidly and compliantly.
Conduct an impact study: although not mandatory in all instances, an impact study is highly recommended. This study outlines for each type of information (see 2 above) what impact a breach would cause and how to react. The CNIL (Commission national de l’informatique et des libertés) website has free software that can assist organisations with this task.
Develop a data protection policy: this policy should include collecting only necessary data, and limiting access to only those who are required to use it. It should also contain a data retention / destruction plan, a technology charter, a model form of consent, a plan of response to data subjects who chose to exercise any of their rights (rectification, access, erasure, mobility), and an emergency response procedure in the event of a data breach.
Establish an employee training program: data protection affects each and every member of an organisation. It is a culture that must be implemented, tested, and refreshed on an ongoing basis.
By way of information, in the event of an audit by the CNIL, the commission will ask for the following documents to ensure an organisation’s compliance:
- The data processing register
- The Impact study
- Contracts with sub-contractors and suppliers
- Data transfer contracts for data exported outside the EU
- Data collection disclaimer
- Model form(s) of consent
- Proof of consent
- Processes in place to respond to the data subject’s exercise of their rights
- Internal security measures to prevent a breach as well as a communication plan once a breach has occurred.
While the GRDP spells a new era of data protection for organisations conducting business with Europe, and while the compliance burden it places on these organisations is onerous, it is by no means unsurmountable. Many public and private bodies exist to help to bring organisations into compliance. So while it is probably too late to put in place a fully compliant program between now and May 25, it is by no means too late to begin!
BCF would be happy to assist you in navigating the GDPR and implementing a compliant data protection program. Please contact a member of the Privacy, Data Protection and Cyber-Crypto Security team for more information.