This overview highlights the key themes of the General Data Protection Regulation (GDPR) to help organisations understand the new legal framework in the EU. It explains the similarities with the existing UK Data Protection Act 1998 (DPA), and describes some of the new and different requirements. It is for those who have day-to-day responsibility for data protection.
This is a living document and we are working to expand it in key areas. It includes links to relevant sections of the GDPR itself, to other ICO guidance and to guidance produced by the EU’s Article 29 Working Party. The Working Party includes representatives of the data protection authorities from each EU member state, and the ICO is the UK’s representative.
The GDPR will apply in the UK from 25 May 2018. The government has confirmed that the UK’s decision to leave the EU will not affect the commencement of the GDPR.
The ICO is committed to assisting businesses and public bodies to prepare to meet the requirements of the GDPR ahead of May 2018 and beyond. We acknowledge that there may still be questions about how the GDPR would apply in the UK on leaving the EU, but this should not distract from the important task of compliance with the GDPR.
With so many businesses and services operating across borders, international consistency around data protection laws and rights is crucial both to businesses and organisations, and to individuals. The ICO’s role has always involved working closely with regulators in other countries, and that will continue to be the case. Having clear laws with safeguards in place is more important than ever given the growing digital economy, and we will work with government to stay at the centre of these conversations about the long term future of UK data protection law and to provide our advice and counsel where appropriate.
Who does the GDPR apply to?
- The GDPR applies to ‘controllers’ and ‘processors’. The definitions are broadly the same as under the DPA – ie the controller says how and why personal data is processed and the processor acts on the controller’s behalf. If you are currently subject to the DPA, it is likely that you will also be subject to the GDPR.If you are a processor, the GDPR places specific legal obligations on you; for example, you are required to maintain records of personal data and processing activities. You will have significantly more legal liability if you are responsible for a breach. These obligations for processors are a new requirement under the GDPR.However, if you are a controller, you are not relieved of your obligations where a processor is involved – the GDPR places further obligations on you to ensure your contracts with processors comply with the GDPR.
- The GDPR applies to processing carried out by organisations operating within the EU. It also applies to organisations outside the EU that offer goods or services to individuals in the EU.
- The GDPR does not apply to certain activities including processing covered by the Law Enforcement Directive, processing for national security purposes and processing carried out by individuals purely for personal/household activities.
What information does the GDPR apply to?
Like the DPA, the GDPR applies to ‘personal data’. However, the GDPR’s definition is more detailed and makes it clear that information such as an online identifier – eg an IP address – can be personal data. The more expansive definition provides for a wide range of personal identifiers to constitute personal data, reflecting changes in technology and the way organisations collect information about people.
For most organisations, keeping HR records, customer lists, or contact details etc, the change to the definition should make little practical difference. You can assume that if you hold information that falls within the scope of the DPA, it will also fall within the scope of the GDPR.
The GDPR applies to both automated personal data and to manual filing systems where personal data are accessible according to specific criteria. This is wider than the DPA’s definition and could include chronologically ordered sets of manual records containing personal data.
Personal data that has been pseudonymised – eg key-coded – can fall within the scope of the GDPR depending on how difficult it is to attribute the pseudonym to a particular individual.
Sensitive personal data
The GDPR refers to sensitive personal data as “special categories of personal data” (see Article 9). These categories are broadly the same as those in the DPA, but there are some minor changes.
For example, the special categories specifically include genetic data, and biometric data where processed to uniquely identify an individual.
Personal data relating to criminal convictions and offences are not included, but similar extra safeguards apply to its processing (see Article 10).
Under the GDPR, the data protection principles set out the main responsibilities for organisations.
The principles are similar to those in the DPA, with added detail at certain points and a new accountability requirement. The GDPR does not have principles relating to individuals’ rights or overseas transfers of personal data – these are specifically addressed in separate articles (see GDPR Chapter III and Chapter V respectively).
The most significant addition is the accountability principle. The GDPR requires you to show how you comply with the principles – for example by documenting the decisions you take about a processing activity. This is explained in greater detail later in this guide.
Article 5 of the GDPR requires that personal data shall be:
(a) processed lawfully, fairly and in a transparent manner in relation to individuals;
(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 not be considered to be incompatible with the initial purposes;
(c) adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed;
(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;
(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 subject to implementation of the appropriate technical and organisational measures required by the GDPR in order to safeguard the rights and freedoms of individuals;
(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.
Article 5(2) requires that
“the controller shall be responsible for, and be able to demonstrate, compliance with the principles.”
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