General Data Protection Regulation
This sandbox is in the article namespace. Either move this page into your userspace, or remove the {{User sandbox}} template. The European Commission plans to unify data protection within the European Union (EU) with a single law, the General Data Protection Regulation (GDPR). The current EU Data Protection Regulation 95/46/EC does not consider important aspects like globalization and technological developments like social networks and cloud computing sufficiently and new guidelines for data protection and privacy were required. Therefore a proposal for the regulation has been released on 25 January 2012. The adoption is aimed for in 2014 and the regulation is planned to take effect in 2016 after a transition period of 2 years. Discussions regarding specific contents are still ongoing.
Summary
The proposed new EU data protection regime extends the scope of the EU data protection law to all foreign companies processing data of EU residents. It provides for a harmonization of the data protection regulations throughout the EU, thereby making it easier for non-European companies to comply with these regulations; however, this comes at the cost of a strict data protection compliance regime with severe penalties of up to 2 % of worldwide turnover. [1]
Content
The proposal for the European Data Protection Regulation contains the following key changes [2]:
- Scope
- Single Set of Rules
- Responsibility – notice and access
- Privacy by Design and by Default (Article 23)
- Data Protection Impact Assessments (Article 33)
- Data Protection Officers (Articles 35-37)
- Data breaches (Articles 31, 32)
- Single Data Protection Authority (DPA)
- Consent
- Fines
- Right to be Forgotten (Article 17)
- Data Portability (Article 18)
Timeline
The preliminary schedule is [3]
- 27th February 2013: Deadline for tabling amendments
- End of April 2013: Orientation vote in LIBE Committee
- from May 2013 on (depending on progress in the Council of Ministers) Negotiations between European Parliament, Council and Commission (Trilogue)
Discussions & Challenges
The proposal for the new regulation is still discussed controversially. Some of the issues are
- The requirement to have a Data Protection Officer (DPO) in companies with more than 250 employees is new for many EU countries and criticized by some for its administrative burden. For other countries like Germany this is lowering the level of data protection since there is already a requirement for a DPO in smaller companies (in Germany > 9 employees).
- The breach notification to the authorities within 24 hours is considered very ambitious by many
- The GDPR was developed with a focus on social networks and cloud providers, but did not consider requirements for handling employee data sufficiently.
- Data Portability is not seen as a key aspect for data protection, but more a functional requirement for social networks and cloud providers.
- Language and staffing challenges for the Data Protection Authorities (DPA):
- Abroad companies might prefer the UK / Irish DPA which will require extensive resources. The Irish DPA already had troubles handling the Facebook audit recently.
- EU citizen do no longer have a single DPA to contact for their concerns, but have to deal with the DPA the company chose. Communication problems due to foreign languages have to be expected.
- The new regulation conflicts with other non-European laws and regulations (like the US Homeland Security Act) and practices (surveillance by governments). Companies in such countries should not be acceptable for processing EU personal data anymore.
- Currently specific contents of the proposal are still under discussion, but the biggest challenge might be the implementation of the GDPR in practice:
- The European Commission and DPAs have to provide sufficient resources and power to enforce the implementation and a unique level of data protection has to be agreed upon by all European DPAs since a different interpretation of the regulation might still lead to different levels of privacy.
- The implementation of the EU GDPR will require comprehensive changes of business practices for companies that did not implement a comparable level of privacy until now (especially non-European companies handling EU personal data).
- There is already a lack of privacy experts and knowledge as of today and upcoming requirements might worsen the situation. Therefore education in data protection and privacy will be a critical factor for the success of the GDPR.
Change Management
What are the most important steps for privacy professionals to adapt to the GDPR [4]?
- The proposed changes to the European Data Protection Regulation will affect you if you have
- Bulleted list item European customers, or
- European employees, partners, offices, etc.
- Take your time to go through the changes of the GDPR and identify new requirements
- Determine what risks to privacy need real protection considering your
- Business situation (like reputation, customer satisfaction)
- Legal requirements (future and current)
References
[1] http://www.mlawgroup.de/news/publications/detail.php?we_objectID=227 (accessed January 2013) [2] http://ec.europa.eu/justice/data-protection/document/review2012/com_2012_11_en.pdf (accessed January 2013) [3] http://www.janalbrecht.eu/themen/datenschutz-und-netzpolitik.html (accessed January 2013) [4] https://www.privacyassociation.org/media/presentations/A12_EU_DP_Regulation_PPT.pdf (accessed January 2013)