Sunday, 3 December 2017

How the GDPR works

Author Mauro Cateb
Licence Creative Commons Attribution-Share Alike 3.0 unported

Jane Lambert

In my introduction to the GDPR 2 Dec 2017 I wrote that the regulation sought to balance two conflicting imperatives, namely the need to protect the public from the harm that can result from malicious, negligent or even careless processing of data that identifies living individuals and the need to safeguard free flows of such data for legitimate purposes.  As I also wrote in that article, there is nothing new about any of that. That policy is exactly the same as that of the Data Protection Directive, the Data Protection Act 1998, the Data Protection Act 1984, the Council of Europe Convention and the OECD Guidelines.

The GDPR also seeks to achieve that objective in much the same way as previous legislation.  It establishes a set of principles for processing personal data (data by which living human beings can be identified) and machinery for monitoring and enforcing compliance.  That machinery takes the form of rights for data subjects (the individuals who can be identified from the data) and obligations upon data controllers (those who control the processing of personal data) and processors (those who carry out the processing) to take reasonable steps to minimize the risk or effect of non-compliance.

The GDPR's data processing principles require personal data to be:
(a) processed lawfully, fairly and in a transparent manner in relation to the data subject (‘lawfulness, fairness and transparency’);
(b) collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes shall, in accordance with Article 89 (1), not be considered to be incompatible with the initial purposes (‘purpose limitation’);
(c) adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed (‘data minimisation’);
(d) accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay (‘accuracy’);
(e) kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed; personal data may be stored for longer periods insofar as the personal data will be processed solely for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article 89 (1) subject to implementation of the appropriate technical and organisational measures required by this Regulation in order to safeguard the rights and freedoms of the data subject (‘storage limitation’);
(f) processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures (‘integrity and confidentiality’)."
It is the data controller's duty to be responsible for and demonstrate compliance with those principles.

So long as data controllers and processors process personal data in accordance with those principles they are unlikely to go far wrong. However, if they stray from them, whether intentionally or not, they risk legal action in the civil courts or fines or other sanctions by the Information Commissioner or the equivalent supervisory authority of another EU member state.

As an obvious way round the legislation would be to export the data to a country that does not regulate the processing of personal data either at all or to the same extent and in the same way, the regulation restricts transfers of data abroad unless Commission is satisfied with the legal protection of personal data processing that is available in the recipient country or enforceable contractual arrangements are in place for the protection of such data. The GDPR makes clear that the regulation applies not just to data controllers and processors that are in the EU, but also to data controllers outside the EU which offer goods or services to data subjects in the EU or monitor the behaviour of such data subjects within the EU.

In the next few articles I shall drill down into each of those topics in more detail.  Should anyone wish to discuss this article, the GDPR or data protection generally, he or she should call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.

Further Reading

Author and Title
2 Dec 2017
NIPC Data Protection
1 Dec 2017
NIPC Data Protection
11 Aug 2017
NIPC Data Protection

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