Introduction
This guidance highlights 12 basic steps you can take now to prepare for the General Data Protection Regulation (GDPR) which will apply from 25 May 2018.
Many of the GDPR’s main concepts and principles are much the same as those in the current Data Protection Act (DPA), so if you are complying properly with the current law then most of your approach to compliance will remain valid under the GDPR and can be the starting point to build from. However, there are new elements and significant enhancements, so you will have to do some things for the first time and some things differently.
It is essential to plan your approach to GDPR compliance now and to gain ‘buy in’ from key people in your organisation.
The GDPR places greater emphasis on the documentation that data controllers must keep to demonstrate their accountability.
Awareness
You should make sure that decision makers and key people in your organisation are aware that the law is changing to the GDPR.
Information you hold
You should document what personal data you hold, where it came from and who you share it with.
The GDPR requires you to maintain records of your processing activities.
You won’t be able to do this unless you know what personal data you hold, where it came from and who you share it with. You should document this. Doing this will also help you to comply with the GDPR’s accountability principle,
Communicating privacy information
You should review your current privacy notices and put a plan in place for making any necessary changes in time for GDPR implementation.
When you collect personal data you currently have to give people certain information, such as your identity and how you intend to use their information. Under the GDPR there are some additional things you will have to tell people.
The GDPR requires the information to be provided in concise, easy to understand and clear language.
Individuals’ rights
You should check your procedures to ensure they cover all the rights individuals have, including how you would delete personal data or provide data electronically and in a commonly used format.
On the whole, the rights individuals will enjoy under the GDPR are the same as those under the DPA but with some significant enhancements.
This is a good time to check your procedures and to work out how you would react if someone asks to have their personal data deleted.
Subject access requests
You should update your procedures and plan how you will handle requests to take account of the new rules. In most cases you will not be able to charge for complying with a request and you will have a month to comply, rather than the current 40 days, although you can refuse or charge for requests that are manifestly unfounded or excessive.
Lawful basis for processing personal data
You should identify the lawful basis for your processing activity in the GDPR, document it and update your privacy notice to explain it.
You will also have to explain your lawful basis for processing personal data in your privacy notice and when you answer a subject access request.
Consent
You should review how you seek, record and manage consent and whether you need to make any changes.
Consent must be freely given, specific, informed and unambiguous. There must be a positive opt-in – consent cannot be inferred from silence, pre- ticked boxes or inactivity. It must also be separate from other terms and conditions, and you will need to have simple ways for people to withdraw consent.
You are not required to automatically ‘repaper’ or refresh all existing DPA consents in preparation for the GDPR. But if you rely on individuals’ consent to process their data, make sure it will meet the GDPR standard on being specific, granular, clear, prominent, opt-in, properly documented and easily withdrawn. If not, alter your consent mechanisms and seek fresh GDPR-compliant consent, or find an alternative to consent.
Children
You should start thinking now about whether you need to put systems in place to verify individuals’ ages and to obtain parental or guardian consent for any data processing activity.
For the first time, the GDPR will bring in special protection for children’s personal data, particularly in the context of commercial internet services such as social networking.
Data breaches
You should make sure you have the right procedures in place to detect, report and investigate a personal data breach.
Some organisations are already required to notify the ICO (and possibly some other bodies) when they suffer a personal data breach. The GDPR introduces a duty on all organisations to report certain types of data breach to the ICO, and in some cases, to individuals.
Data Protection by Design and Data Protection Impact Assessments
It has always been good practice to adopt a privacy by design approach and to carry out a Privacy Impact Assessment (PIA) as part of this. However, the GDPR makes privacy by design an express legal requirement, under the term ‘data protection by design and by default’. It also makes PIAs – referred to as ‘Data Protection Impact Assessments’ or DPIAs – mandatory in certain circumstances.
Data Protection Officers
You should designate someone to take responsibility for data protection compliance and assess where this role will sit within your organisation’s structure and governance arrangements.
It is most important that someone in your organisation, or an external data protection advisor, takes proper responsibility for your data protection compliance and has the knowledge, support and authority to carry out their role effectively.
International
If your organisation operates in more than one EU member state, you should determine your lead data protection supervisory authority and document this.
The lead authority is the supervisory authority in the state where your main establishment is.
This is only relevant where you carry out cross-border processing – i.e. you have establishments in more than one EU member state or you have a single establishment in the EU that carries out processing which substantially affects individuals in other EU states.
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