The European General Data Protection Regulation (GDPR) came into force throughout the European Union on May 25, 2018. The GDPR replaced existing data protection laws throughout Europe and introduced significant changes and additional requirements that have a wide-ranging impact on businesses around the world, irrespective of where they operate.
The GDPR: The Changes That Affect Your Business
The key changes and additional requirements introduced by the GDPR are:
- European data protection laws now apply worldwide. In a significant departure from the previous requirements, in addition to businesses that are established in the European Union, organizations that are located outside the EU that process personal data in relation to the offer of goods or services to individuals within the EU, or as a result of monitoring individuals within the EU, have to comply with European data protection law. Non-EU based businesses need to consider whether they are subject to the new rules and how they will comply.
- Tougher sanctions for non-compliance. The maximum fine for a breach of European data protection law is substantially increased to 4% of an enterprise’s worldwide turnover or €20 million per infringement, whichever is higher.
- A new data breach notification obligation. Organizations now have to notify the relevant European data protection authority of a breach without undue delay and where feasible within 72 hours. A notification must also be made to the individuals affected without undue delay where there is a high risk to the individuals concerned.
- New data privacy governance, data mapping and impact assessment requirements. Organizations now need to appoint a data protection officer to be responsible for implementing and monitoring that organization’s compliance with the GDPR and to carry out assessments of an organization’s data processing in certain circumstances. Organizations now are also required to map their processing of personal data and undertake data protection impact assessments for higher risk processing.
- A requirement to implement ‘privacy by design’. Businesses must now take a proactive approach to ensure that an appropriate standard of data protection is the default position taken when personal data is being processed.
- Strengthening of individuals’ rights to personal data. Individuals have the right to have their personal data removed from systems or online content (the ‘right to be forgotten’), the right not to be subjected to automated data profiling (where this would produce a legal effect), and the right to be given a copy of the personal data relating to them in a commonly used format and to have that information transmitted to another party (the ‘right to data portability’). Organizations must determine how they will enable individuals to exercise these rights.
- Enhanced requirements for the supply chain. Businesses must only use other parties to process personal data that provide sufficient guarantees that they will implement appropriate security measures to satisfy the requirements of the GDPR. These service providers will be held accountable for their own level of appropriate security, must document their processing to the same extent under the GDPR and must obtain prior consent to employ sub-processors. Organizations need to review and amend their contracts with these parties to address the changes in responsibilities.
Preparing for the GDPR: The 10 Steps Your Business Should Take to Get Ready to Comply
If a preliminary assessment determines that your business will have to comply with the GDPR, your business should take the following 10 key steps:
- Inform your leadership and formulate a plan. Senior management should be made aware of the changes to data protection law and how it will affect your business. Senior management should designate the individuals that will formulate a plan for how your business will implement the requirements of the GDPR and will educate the wider workforce on its operational impact.
- Appoint a data protection officer. A decision should be made as to whether it is required under the GDPR or otherwise desirable for your organization to appoint a data protection officer who will be responsible for the implementation of the requirements of the GDPR and monitoring compliance with it. This person should act as the head of your data protection governance structure, report directly to leadership and should be responsible for putting controls in place to implement and monitor compliance.
- Map your personal data. A detailed investigation should be conducted into and a record created of the personal data your business is collecting, the purposes for which it is being processed, how it was obtained and the parties that it is being shared with.
- Examine the impact. The information gathered from the personal data mapping exercise should be used to assess which parts of your business and which data processing activities must comply with the GDPR.
- Address the risks. Data protection impact assessments should be conducted to identify and minimize the risks associated with the processing of personal data by your business, particularly where there are high risks to the rights and freedoms of the individuals concerned by the activities that are being or are going to be carried out.
- Review the grounds under which personal data is being processed. How and the basis under which personal data is being collected and processed should be reviewed to determine if any changes need to be made for this to continue under the GDPR, particularly where ‘consent’ and ‘legitimate interests’ (which are more difficult to demonstrate under the GDPR) are being relied upon to process personal data.
- Update your data governance. Policies, procedures and other governance controls within your business should be updated to detail how your organization will practically comply with the new requirements under the GDPR. Employees should receive training on and should be regularly updated about this.
- Implement new compliance systems. Plans and mechanisms must be put in place to ensure that the business can respond to a data breach and the new data breach notification requirements, the rights to be forgotten, to data portability, to object to automated data profiling, to be provided with access to personal data and other rights that individuals can exercise in relation to their personal data.
- Review your supply chain contracts. The contracts with the service providers and other parties that your business shares personal data with should be reviewed and, where necessary, renegotiated to ensure that your organization is appropriately supervising the manner in which they process personal data and that those parties are complying with their obligations under the GDPR.
- Assess your international transfers. Assess the manner in which you currently carry out any international transfers of personal data and whether any mechanisms for carrying out these transfers within your organization or to third parties needs to be updated to comply with the European data protection requirements.
- A preliminary assessment on whether the GDPR applies. We can conduct a simple, preliminary assessment to determine whether and how your business may have to comply with the GDPR.
- Training tailored to your organization. We can provide your senior management, legal and compliance teams with training on the requirements under the GDPR and the steps your business should take to comply with it, as well as follow-on ‘train the trainer’ sessions, training videos, presentations and materials on data protection compliance that can be used by your organization to inform the wider workforce as part of its broader training program.
- Strategic guidance on how to create and implement a data protection off ice and framework. We can advise you on whether it is necessary or desirable for your organization to create a data protection office as well as provide strategic guidance on the development and deployment of your plan to comply with the GDPR requirements.
- Assistance mapping, assessing and documenting your processing of personal data. We can:
- Help you to assess and document the processing and transfers of personal data by your organization;
- Advise you on which activities must comply with the GDPR;
- Work with you to conduct data protection impact assessments and advise you on how to minimize the risks identified; and
- Assist you with recording the grounds under which personal data is being processed and advise you on whether any changes need to be made to the manner in which it is collected or used in order to comply with the GDPR.
- Support developing your data governance documents and systems. We can assist your organization with the drafting of data protection policies, procedures and fair processing notices as well as the creation and testing of data breach response plans. We can also advise you on the implementation of mechanisms that will enable your organization to respond to the exercise of individuals’ rights in their personal data.
- Analysis of your data sharing contracts. We can review and advise you on whether the contracts that you have in place with parties to whom you transfer personal data enable your business to comply with its requirements under the GDPR and we can assist you with updating and renegotiating those contracts if necessary.
- Advice on international transfers. We can examine the extent to which personal data is transferred internationally by your business, advise you on the extent to which this complies with the GDPR and assist you to create and implement measures that will enable your business to carry out those transfers lawfully.
- Ongoing support with the implementation of your data protection projects using the Mayer Brown Global Cybersecurity and Data Privacy Team. Whether it be the deployment of your data governance framework, certification to EU-US Privacy Shield or adoption of Binding Corporate Rules, we can provide you with ongoing support to assist you with the development and implementation of your data protection projects around the world using lawyers at Mayer Brown offices and at other firms as part of our Global Cybersecurity and Data Privacy Team network.
Mayer Brown’s global platform enables us to provide exceptional service to our clients across the globe. Mayer Brown and its lawyers throughout the Americas, Europe, Middle East and Asia have deep knowledge and a practical understanding of the cybersecurity and data privacy statutes and regulations in their home countries and surrounding regions, with members of Mayer Brown team recognized in Chambers & Partners, The Legal 500, The National Law Journal Trailblazers for Cybersecurity and Data Privacy and Law360.
This experience and global capability allows us to address a client’s most complex international cybersecurity and data privacy issues, whether the client requires advice on creating an enterprise-wide privacy framework, counsel on implementing international data transfers in the context of global outsourcing projects or assistance in responding to a data breach in multiple jurisdictions. Together, our lawyers help clients respond proactively to international developments such as the invalidation of Safe Harbor and its replacement with the EU-US Privacy Shield, the implementation of the General Data Protection Regulation in Europe or changes to the Personal Data (Privacy) Ordinance in Hong Kong. In addition, our practice maintains an extensive network of local counsel in countries where we do not have offices and with whom our lawyers liaise as needed.
As part of our global service, we will provide lead partners for the Americas, Europe, Middle East and Africa and Asia-Pacific regions to be the point of contact for your representatives for any cybersecurity and data privacy matters being led or originating from those regions.
Each lead partner will work with legal counsel in their home region as part of a core team to resource your requirements in that region efficiently, to develop know how as to your needs, and build relationships with your teams. The core team will be the point of contact for your organization’s cybersecurity and data privacy specialists, in-house counsel, compliance and management representatives.
The core team will work with and coordinate the efforts of the sector and regional contacts in their region. The lead partner will coordinate with the team leaders from other regions where assistance is required from the core teams and sector and regional contacts in those regions.
There are some countries where we do not have our own offices but where we have developed relationships with local law firms to cover the cybersecurity and data privacy requirements of our clients. A list of these countries and the local counsel that we work with can be provided on request.