The EU’s Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data was signed off on 27 April 2016, two years ago. It becomes enforceable from 25 May 2018. Have we been using these last two years to get ready?
This, from a year ago, sums it up, I think.
Concern that schools are not preparing for new rules on personal data
The General Data Protection Regulations are the ‘biggest change in 25 years’ to how organisations must manage personal data, but only a fifth of schools are aware of the May 2018 deadline.
Employers and schools are all certainly busy now, in these last few weeks, reviewing data asset registers and updating privacy notices. The news that the fines for noncompliance could be as high as £17 million is certainly a motivator, although here’s Elizabeth Denham, the Information Commissioner, suggesting they won’t be levying such large fines lightly.
What is GDPR? Data protection law is changing in 2018. Here’s what you need to know
But Denham says speculation that her office will try to make examples of companies by issuing large business-crippling fines isn’t correct. “We will have the possibility of using larger fines when we are unsuccessful in getting compliance in other ways,” she says. “But we’ve always preferred the carrot to the stick”.
“Having larger fines is useful but I think fundamentally what I’m saying is it’s scaremongering to suggest that we’re going to be making early examples of organisations that breach the law or that fining a top whack is going to become the norm.” She adds that her office will be more lenient on companies that have shown awareness of the GDPR and tried to implement it, when compared to those that haven’t made any effort.
As well as some of us acting as data controllers or data processors, we’re all data subjects too. These are new rules designed to protect our data. I’m sure we’ve all been getting e-mails from companies like Twitter, Instagram and Fitbit and so on, about their revised data and privacy policies.
Here’s a great summary from Danny O’Brien of the Electronic Frontier Foundation, on what to look out for.
Why am I getting all these terms of service update emails?
The EU regulators are certainly paying attention to these email updates. A strongly-worded blog post this week by EU’s head enforcer, European Data Protection Supervisor (EDPS) Giovanni Buttarelli, warned the public and his fellow regulators to be “vigilant about attempts to game the system”, adding that some of these new terms of service emails could be “travest[ies] of the spirit of the new regulation”.
As Buttarelli says, such “legal cover” might well be against the spirit of the GDPR, but it’s going to take a while for companies, regulators, and privacy groups to establish what the law’s sometimes ambiguous statements really mean. One particularly knotty problem is whether the language that many of these emails use (“by using our service, you agree to these terms”) will be acceptable under the GDPR. The regulation is explicit that in many areas, you need to give informed, unambiguous consent by “a statement or clear affirmative action.” Even more significantly, if the data being collected by a company isn’t necessary for the service it is offering, under the GDPR the company should give covered users the option to decline that data collection, but still allow them to use the service.