Countdown to GDPR - What to do in July and August 2017

Sally Mewies: So Rocio and I have been working on a General Data Protection Regulation (GDPR) compliancy checklist to help businesses get ready for GDPR in May 2018. It's just about 12 months now to launch and we decided that it would be really helpful if we set out some of our thoughts in terms of what you do over the next 12 months to really make sure that your business is ready for the launch of GDPR. We all know there's a lot to do and we decided to look at this on a month by month basis. So that if you have already done a bit of work on GDPR compliancy, then this will help you just to check that you've done the things you need to do. If you've done nothing at all, hopefully you're not one of those business, but if you've done nothing at all, then this should prove a useful countdown for you in terms of getting ready for GDPR in May next year.

So, we're going to start Rocio aren't we with July and August, do you want tell us what you should be doing for July and August?

Rocio De La Cruz: A good starting point would be carrying out a data mapping exercise, so in the businesses there are a lot of obviously personal data processed and you need to understand the flow of data, you need to know what kind of personal data you are processing, you need to know where it is stored, you need to know who is accessing to that data. Also in order to do it properly I think it is very important to get some stakeholders across the businesses involved in that exercise, so they can give an overview of the processing of personal data in practice.

And this takes time. If you  don't have a policy implemented already then there is a lot of processing of personal data that is not crossing desks for review or has not been approved and it needs to be identified. We think it is a very good starting point to do it in July.

Sally: Yeah and the data mapping is important isn't it Rocio because there's a lot more complexity to GDPR than our old data protection regime and unless you understand what you are doing with data right now then you can't hope to be compliant for May next year.

Rocio De La Cruz: Absolutely, for example just one simple thing and that would be minimisation and try not to process more data than you really need to process for the purposes for which you need to process the personal data. It sounds very simple, but if you think about it in practice everybody is collecting and storing more personal data than they need by default, as a practice and just identifying what you really need as necessary and the purposes for which you need that is just a big task.

Sally: And what do you think about doing presentations to key stakeholders in the business so they understand the main points of GDPR?

Rocio: I think that is a very very good practice to do because not only in terms of awareness but because like I said when you talk to them and you get them involved they get a better knowledge of what they should be doing. But also they give you a lot of information with regards to how the personal data is being processed in practice, which is a very key point to actual compliance. So definitely doing these sort of presentations to them are very helpful.

Sally: And some aspects I think of GDPR require a lot of support from IT systems, you might say that was true of the Data Protection Act, but it seems to me that there is a huge amount where you need strong IT systems to be able to be compliant. So I think undertaking an IT audit as well in the context of processing of personal data is a really helpful exercise as well, do you agree?

Rocio: I would even say that it's crucial because you need to keep the data secure so this is something that is not new as we know, but now considering the fines and the risks you are facing, you really need to make sure that the data is kept secure and that you have appropriate security IT systems. But also there is a lot of IT or cloud solutions used across the businesses but they don't cross their legal desk for review, but now it would increase the risk in the organisations and they need to be reviewed. And also if you are thinking about contracting new providers you need to undertake an audit and perhaps depending on the nature of personal data that you are processing, you even need to carry out a data protection impact assessment and in terms of budget to assess whether or not you can afford the IT systems and if not, what solutions you can put in place instead of that one and again that takes a long time so. 

Sally: And then just moving on now to August Rocio…more mapping, is that what we need really in August a continuation of the mapping?

Rocio: Yes I think that if you are, if you have the ambition to do the whole exercise in one month, in practice we are seeing that this is not a reality, so you really need time. So I think that it is a good starting point just identifying what data you use and who accesses it. But then, once you've got that you need to identify the purpose for which you need to use that data. If or whether or not you are going to use that data for additional purposes, in order to assess what conditions or what legal conditions you can rely on in order to process that data. So it's time to review what conditions you are relying on now and it's time to put that together with Article 6 and Article 9 of the GDPR to make sure that you can still process that data on a legal basis.

Sally: And just moving on in August you should really just be doing some due diligence around some of your commercial contracts as well I think shouldn't you, so that you are starting to understand the landscape in terms of data processes that are engaged by the business. Do you want to talk a little bit more about that, in terms of what needs to be done to fulfil obligations around that?

Rocio: Yes sure, in terms of contracts it is very important that there are a lot of changes now that they need to be considered and also they need to be renegotiated with your data processors, so the data processes that are used by the businesses and there are a lot of obligations placed on processors now, but also that doesn't mean that the controller is not going to be responsible for processing or for engaging a processor. So there are a lot of requirements stated in Article 28 of the GDPR with regards to contracts if you are engaging a data processor and the first of it is that you need to make sure that the data processor complies with all the requirements in the GDPR. But also there is a lot of clauses that you need to include as a mandatory thing because it is stated in Article 28. This is implying or is causing a lot of changes in the way that you negotiate contracts with processors. So if you don't have them in place by May 2018 then again this would be a breach of the GDPR. So definitely you need time to negotiate and to review all contracts and also in practice in some big enterprises they have a lot, a huge number of contracts in place and then it takes time to assess what contracts need an immediate review, because for example the nature of the personal data this processor is accessing to is sensitive personal data or because the IT system needs to be developed.

Sally: The other aspect, the other thing you need to be starting to look at is before August is a review of your commercial contracts, because where you have commercial contracts under which you have appointed a data processor, then there are requirements under GDPR to ensure that those contracts comply with certain stipulated conditions. They won't be compliant for May next year because the law has changed from the Data Protection Act to GDPR, so you need to do an exercise around reviewing and understanding what's going on in those contracts. Have you got any thoughts Rocio on how you might go about doing that?

Rocio: Yes and in practice it is very difficult to try to get all the contracts sorted out for May 2018. So I think it's an important exercise to do is doing a privacy impact assessment to identify the risks. So for example if a processor is processing employee personal data or sensitive customer personal data or a large scale of personal data, then perhaps of the risks of not having the clauses that have been implemented in the contracts and Article 28 of the GDPR in place, places the organisation in a higher risk. So I think the first exercise is to understand and identify what contracts require immediate action, in order to negotiate either the clauses or further development of the IT systems if they are required and all the sorts of things that make you re-compliant with the GDPR.

Sally: So I think what we are saying on that is you need to be doing something, if you did nothing at all and didn't even make an attempt to make sure that your commercial contracts are compliant then the Information Commissioner's Office (ICO) regulator may take a dim view of that. But I think there is an acceptance that it is very unlikely that every single contract that a business has will be compliant with this provision by May 2018. So it's a bit about taking a proportional and risk based approach, doing what you can do. As you say doing a privacy impact assessment to identify any high risk areas and trying to plug those gaps. We think, don't we Rocio, that if you've done all of that and you've been sensible in your approach the regulator probably isn't going to be too harsh on you, although this is an area where you could be subject to a fine for not having the right clauses in the contract.

Rocio: I feel like that is kind of a tricky thought because on one hand I have been in lectures where I heard that we are lucky we've got a sensible ICO here in the UK, but obviously I cannot put ICO's words … but yes I think it makes all the sense to think that if you do all that you can, you keep records of all the decisions you take and again you are doing risk assessments, you are focusing on protecting the privacy of the individuals in those agreements or contracts where the risk is higher and you comply with all the requirements if a privacy impact assessment is mandatory and if there is still a risk you need to have a consultation with the ICO for that particular risk. So I think if you do all of these steps obviously I believe that the ICO would be much more sensible.

Sally: Good thank you and that's all for July and August.