Countdown to GDPR - What to do in September 2017

Sally Mewies: Welcome to our September edition of General Data Protection Regulation (GDPR) compliancy. Rocio, we are still in September looking at data mapping aren't we so we are now looking more in September at the data mapping aspects around the legal conditions for processing. In our previous video we talked about mapping for establishing purposes so you can maintain the necessary written documents. We're now looking at mapping to establish the legal conditions on which a business is processing, always significant in relation to Data Protection Act I think but more significant in GDPR because you need now to understand the rights of individuals which are much more extensive under GDPR that flow from the different levels of processing and this comes out of legal conditions. What I did want to do was just pull in the consent. So consent is still a legal condition for processing as it was in the Data Protection Act, we've always said in the past that consent was the least favourable option in terms of finding a condition for processing, is that still the case Rocio?

Rocio De La Cruz: Yes, definitely. The requirements in term …in order to rely on consent has been enhanced under the GDPR and now it is much more strict condition if you want to rely on that one and this is to the point that if you can't rely on any other conditions stated in Article 6 or if you are processing the special category of personal data one of the conditions is stated in Article 9 of the GDPR, you should avoid relying on consent. It's going be very difficult to keep records of their consent given complying with all the requirements so now it is much more clear and transparent and you need to make sure that you are collecting consents which is given free, so you cannot rely on any other one tick boxes for five or six purposes like we are in practice doing now. So, it needs to be for a specific purpose, freely given, it needs to be unambiguous so it's really really … you need to treat it very carefully and even if it is implied consent the affirmative action that the individual does in order to make you think or assume that you can process the data for that purpose which is under the expectations of the individual it's very difficult and also you need to keep records of that, that clear affirmative action that the individual did. For those businesses relying on consent right now they need to review the consent and obviously if the current consent has been given according to what is stated in the GDPR then that is fine but if it hasn't then all these businesses will need to refresh that consent and think about how to refresh that consent and also again make very, very clear that this is for each specific purpose.

Sally: So if you have to refresh consent then that's going be quite challenging if you're relying on a huge amount of personal information isn't it? Without going back to each of the individuals. Under the Data Protection Act there wasn't a requirement to appoint a Data Protection Officer Rocio, but under GDPR that has changed and now in certain circumstances it is mandatory to have a Data Protection Officer. Can you talk to us about what those circumstances are?

Rocio: Yes, you need to value whether or not you are … that your core activities process larger scale of sensitive personal data or whether you process a larger scale of customers, for examples, personal data. Also, if you are a public authority you will need to appoint a Data Protection Officer as well and it has been quite challenging to identify whether or not or what fits into the core activities definition but if you are hesitating whether or not you need to appoint a Data Protection Officer the recommendation given by the ICO is that it is good practice to appoint one but then there are a lot of issues regarding this appointment because there are a lot of questions concerning whether or not the Data Protection Officer should be an in-house one or should be somebody that is giving assistance to the organisation.

Sally: At one point during the conversations about GDPR there was some discussion about whether a Data Protection Officer would have liability under the Act for breaches by its company of data protection rules, is that still the case Rocio?

Rocio: This has been a matter of discussion of course but their position under the act is that the Data Protection Officer will not be personal liable for a breach of data. Of course in practice you can think about some contractual or under contract within the organisation whether or not it would be liable for any breach of contract if it has been caused by the Data Protection Officer but in the same way that any other employee would be responsible for a breach of data but the position under the GDPR is that they are not personal liable.

Sally: Then the point about just keeping the awareness within the business of GDPR coming down the tracks and making sure that everybody knows that's happening and that's a continuing thing really that you need to be doing throughout the business all the time isn't it in terms of making sure that everybody still is aware and that they're getting ready and they understand the implications in their particular department.

Rocio: Yes, and I think it's a crucial thing, it's such a simple thing to think about awareness and just doing some campaign or adverts in an organisation or sending some emails from time to time and obviously if you are doing trainings but I think it is very important for all the staff to understand the basics because we are seeing in practice that there are a lot of employees using the data in a wrong way and they have been undertaking all of the training and they have been looking at these awareness campaigns but if you don't really get what you need to do the risk of breach occurring is much more higher and you will be surprised to know that most of the breaches of data nowadays are caused by human error.

Sally: Yes.

Rocio: So we are all the time seeing in the news the hackers breaking into the systems which is something that we need to address as well, obviously, and it is a threat that every business needs to face and needs to beat, most of the breaches of data are caused because employees didn't have the proper training or they didn't get the message.

Sally: And that's a really important point isn't is Rocio cause it just shows, especially in this new regime that is more complex and does have more detail it's going be really important to make sure that your people understand the landscape and understand what they can and can't do.

Rocio: Yes, how important it is. So, for example, in practice all these shadow clouds that we are seeing when we are auditing companies and we are seeing that from an innocent way some employees of some departments are using no cost cloud service providers for some purposes and they don't even consult with legal team or IT team for security, then we review the terms and conditions which have been approved by the head of that department with all the best intentions of doing something great for the company but putting the organisation in a very, very high risk of serious breach.

Sally: Yeah, and when you're talking about shadow cloud, you mean people, individuals in IT departments or in HR departments or marketing departments where they buy a cloud service where data will be stored but they haven't done it in a way that is legally compliant or shared it perhaps with their legal team.

Rocio: Yes and even cloud services used by other teams which have not crossed the IT department desk or legal desk for consultation so they don't know. We call it shadow because the board of Directors or the relevant departments don't know that this solution is being used.

Sally: And then just looking again at some of the new areas, the new aspects of GDPR that we haven't seen before, we've got this new right of portability that we referred to before but we've also got privacy by design embedded now into the legislation. Privacy by design was always considered to be good practice and we know that our regulator is particularly keen on it but it wasn't technically part of the law. That's changed under GDPR, can you talk to us about what impact that will have on businesses.

Rocio: Yes it is now mandatory to have in place or to think about privacy by design and also privacy by default and this is … most of it is about minimisation, try to think about the minimum amount of data that you really need and whether or not you can use pseudonimisation and whether or not even you can anonymise data then that would be out of the scope of the GDPR then and also in terms of all the accountability all the systems being ready to have privacy by default in terms of …

Sally: … building that into your systems.  What's the difference between privacy by design and privacy by default because it seems to me that they cut across each other and there's a bit of cross over there?

Rocio: Yes well privacy by default is more in terms of minimisation and by default you need to think about the less evasive way to present that data. Privacy by design is more to do with all the systems that they need to be designed or ready to comply with GDPR, with all the requirements.

Sally: Good. Thank you Rocio and that ends our session for September.