The Definitive Guide to GDPR Compliance

In this comprehensive guide, we’ll unravel the intricacies of the General Data Protection Regulation (GDPR), offering clear explanations, practical insights, and actionable steps to help you understand and comply with this important regulation to harmonize data privacy laws across Europe. Whether you’re a business owner, a data protection officer, or simply curious about your rights in the digital realm, this guide aims to demystify GDPR and empower you with the knowledge needed to navigate the evolving landscape of data privacy.

GDPR Overview

The General Data Protection Regulation (GDPR), is a landmark legislation aimed at safeguarding individual digital privacy rights empowering them with greater control over their personal information within the European Union member states (EU). It replaced the Data Protection Directive 95/46/EC asthe legislative framework to protect personal data and privacy.  It empowers people to have more control over how their information is collected, processed, and used by both public and private sector organizations.

What is GDPR Compliance?

With significant support from the European Parliament and the Council of the European Union, the GDPR involves implementing measures and practices to protect the privacy and security of individuals’ personal data. It was officially published in May 2016, and became applicable in May 2018, after a two-year transition period for organizations to comply with the new regulations. Here are some key aspects:

Data Subject Rights: 

According to the GDPR, personal data is any information relating to an identified or identifiable natural person. An identifiable person is one who can be identified, directly or indirectly, by reference to an identifier such as a name, an identification number, location data, an online identifier (IP address), or factors specific to physical, physiological, genetic, mental, economic, cultural, or social identity. The GDPR grants the EU citizens certain rights over their personal data, including:

• Right to Information: Individuals are entitled to clear and concise information about the collection and use of their personal information.
• Right to Access: The right to access their personal information and details about how it is being processed.
• Right to Rectification: They have the right to correct the false information about their personal data.
• Right to Erasure (Right to be Forgotten): The right to request the deletion of their personal information under certain circumstances.
• Right to Restriction of Processing: Under certain circumstances, individuals have the right to limit any processing of their personal data.
• Right to Data Portability: Individuals have the right to receive their personal data in a structured, commonly used format such as CSV, JSON, or XML and have the right to transmit that data to another controller.
• Right to Object: Individuals have the right to object to the processing of their personal data under certain circumstances, including for direct marketing purposes and processing based on legitimate interests.
• Rights Related to Automated Decision-Making and Profiling: Individuals have the right that may not to be subjected to automated decision-making processes such as profiling which may have legal effects concerning them.

In addition to ensuring that organizations enforce measures to support the above rights, Data management policies should also be aligned with the principles of the GDPR, such as minimizing data, limiting the purpose and accountability.

Lawful Basis for Processing: 

The GDPR requires organizations to have a valid and lawful basis for processing personal information collected from individuals. This can be established, for example, by obtaining clear consent from the individual to process their personal data.  Other lawful bases can be established if processing the personal data is necessary to;fulfil contractual obligations, protect vital interests, perform tasks carried out in the public interest, comply with legal obligations, or pursue legitimate interests (provided they do not override individuals’ rights and freedoms). To help mitigate privacy risks associated with their data processing activities, the organizations are expected to conduct Data Protection Impact Assessments (DPIA) for processing activities that are likely to result in a high risk to individuals’ rights and freedoms.

Data Security Measures: 

GDPR mandates that organizations implement appropriate technical and organizational measures to ensure the security of personal data. This includes implementing policies and procedures using templates to ensure compliance, conducting data protection impact assessments (DPIAs) for high-risk and large-scale processing activities, and maintaining detailed records of data processing activities.

Data Breach Notification: 

Organizations are required to promptly notify the relevant data protection authority (DPA) and affected individuals in the event of a personal data breach that is likely to result in a risk to the rights and freedoms of individuals. 

The notification must be made within 72 hours of becoming aware of the breach. The organizations are also required to notify affected individuals, which is likely to result in a high risk to customers’ rights and freedoms. This notification allows individuals to take necessary protective measures from potential harm, such as identity theft or fraud. 

Compliance helps companies to demonstrate their commitment to protecting the privacy rights of individuals and reduces the risk of penalties or reputational damage. It should be noted that GDPR compliance is an ongoing process and should adapt to any regulatory changes.

What are the GDPR Fines?

Organizations can face fines and penalties for non-compliance with its provisions. The fines are divided into two categories, depending on the nature and severity of the violation:

Fines for less severe violations:

Organizations can be fined up to €10 million or 2% Art. 83(4) GDPR of their global annual turnover, whichever is higher, for certain less severe infringements. These may include violations such as failing to implement data protection measures, not conducting impact assessments when required, or not maintaining records of processing activities.

Fines severe violations:

For more serious breaches, organizations can face fines of up to €20 million or 4% of their global annual turnover (Art. 83(5) GDPR), whichever is higher. Example of infringement: transfer of personal data to a third country without adequate safeguards.

Corrective measures and reputation damage:

The supervisory authorities have the power to impose corrective measures on non-compliant organizations. These measures may include issuing warnings, reprimands, or rectifying the infringement. Supervisory authorities can also suspend data flows or restrict data processing activities until compliance is achieved. Non-compliance with the GDPR can also result in significant reputational damage to an organization. Public exposure of data breaches or violations of privacy regulations can erode trust and confidence in the organization’s ability to protect personal data, leading to the loss of customers, partners, and business opportunities.

It’s essential to note that supervisory authorities have discretion in determining the appropriate fines based on the specific circumstances of each case. The fines are intended to be proportionate,  and effective in protecting individuals’ data privacy rights.

Customer Data and Compliance

Overall, the GDPR aims to empower customers by giving them more control over their personal data and holding organizations accountable for how they collect data, use, and protect that data. By enhancing privacy and data protection standards, GDPR helps build trust between customers and organizations and fosters a more transparent and responsible approach to data processing.

Stay on the Right Side of GDPR Compliance

Technology plays a crucial role in facilitating compliance with the GDPR (General Data Protection Regulation) by helping organizations manage and protect personal data more effectively. When evaluating tools, organizations should consider their specific compliance needs, budget, and integration requirements to select the best solution for their needs. 

Automation tools can significantly aid organizations in achieving compliance with the GDPR by streamlining various processes related to data protection and privacy management.  Auditboard’s CrossComply can automate an organization’s compliance program by importing the GDPR framework with ease. 

Additionally, it’s essential to ensure that the chosen tool complies with GDPR requirements and aligns with industry best practices for data protection and privacy management. Crosscomply can incorporate GDPR controls with intuitive stakeholder views to simplify ongoing compliance, reduce audit fatigue, and enable cross-team collaboration.

GDPR definitions:

Data Protection Officer (DPO): 

The DPO is a data protection management advisor for the organization that monitors GDPR compliance and serves as a point of contact for data subjects and supervisory authorities.

Data controller:

A data controller is an entity that determines the purposes and means of processing personal data. In simpler terms, the data controller is the organization or individual that determines why and how personal data is processed.

Data Processor:

A data processor is an entity that processes personal data on behalf of a data controller.

Data Protection Authority (DPA)

The Data Protection Authority (DPA) is an independent public authority in each EU jurisdiction responsible for overseeing the application of data protection laws, such as the GDPR. 

Example: Information Commissioner’s Office (ICO) will be the DPA in UK and Commission Nationale de l’Informatique et des Libertés (CNIL) for France.

Public authority:

Public authorities are entities that provide public services and functions which are governed by public laws. Public authorities can include government agencies, regulatory bodies, law enforcement agencies, public health institutions, or educational institutions.

Supervisory authority: The supervisory authority is an independent public body responsible for monitoring and enforcing compliance with the public authorities that process personal data.

Opt-in / Opt-out: 

‘Opt-in’ refers to a consent mechanism where individuals actively give permission for their personal data to be collected, processed, or used for specific purposes.

‘Opt-out’, on the other hand, allows the individual to withdraw their consent to the processing of their personal data at any time. The withdrawal of consent must be as easy as giving consent and the organization should stop processing the individual’s data.

Breach notifications:

Organizations must report a personal data breach to the relevant data protection authority and the affected individuals without undue delay and, where feasible, no later than 72 hours after becoming aware of it.

Exemptions

There are certain exemptions and provisions within the GDPR that may apply to specific types of data processing activities or organizations. 

This may include personal data processing carried out for purely personal or household activities or data processing carried out by competent authorities for law enforcement purposes, which may be subject to specific national laws rather than the GDPR.

The Seven Principles of GDPR Compliance

The GDPR is built upon seven key principles that govern the lawful processing of personal data for data protection and privacy within the EU member states and the broader European Economic Area (EEA).

1. Lawfulness, Fairness, and Transparency

Personal data must be processed lawfully, fairly, and transparently. The organizations must have a legal basis for processing personal data, and individuals must be informed in a clear and transparent manner about how their data is being used

2. Purpose Limitation

Organizations must clearly define the purposes for which they are processing personal data and ensure that any subsequent processing is compatible with those purposes.

3. Data Minimisation

Organizations should only collect data and process personal data that is adequate, relevant, and limited to what is necessary for the purposes for which it is being processed.

4. Accuracy

Personal data must be accurate and kept up to date. Data subjects also have the right to request the correction of inaccurate or incomplete data.

5. Storage Limitations

Personal data should be kept in a form that permits the identification of data subjects for the defined retention period(Article 5) and securely deleting personal data when it is no longer needed.

6. Integrity and Confidentiality

Personal data must be processed with appropriate protection against unauthorized processing and accidental destruction. 

7. Accountability

Organizations must document their data processing activities, conduct a DPIA, and appoint a DPO if required.

The GDPR Compliance Checklist

Becoming GDPR compliant requires careful planning and implementation of various measures. The concise checklist below can help organizations assess their GDPR compliance:

Step 1-Data Mapping and Inventory:

• Identify and document all personal data processed by your organization.
• Determine the storage location and the access control.

Step 2-Privacy notice and privacy policy:

• Review and update privacy policies and notice about personal data that is collected, processed, and protected. 
• Provide individuals with information about their GDPR rights

Step 3-Lawful Basis for Processing:

• Determine the lawful basis for processing personal data
• Obtain explicit consent from individuals when necessary.

Step 4-Data Subject Rights:

• Establish procedures to facilitate the exercise of data subject rights
• Respond to data subject requests promptly and within the GDPR timelines.

Step 5-Data Security and Protection:

• Implement appropriate measures for the security and confidentiality of personal data.
• Conduct regular security assessments, penetration testing

Step 6-Data Breach Response Plan:

• Develop a data breach response
• Conduct regular incident response exercises to ensure preparedness.

Step 7-Data Protection Impact Assessments (DPIAs):

• Conduct DPIAs for high-risk data processing activities.
• Involve relevant stakeholders throughout the DPIA process.

Step 8-Data Processing Agreements:

• Review and update standard contractual clauses with data processors as per GDPR requirements

Step 9-Data Transfer Mechanisms:

• Implement appropriate safeguards for the transfer of personal data outside the EEA.

Step 10-Record-Keeping and Documentation:

• Maintain comprehensive records of data processing activities.
• Document GDPR compliance efforts, including policies, procedures, risk assessments, DPIA, and data breach response activities.

Step 11-Implement a Data Protection Training and Awareness program:

• Provide regular training and awareness programs for employees based on GDPR compliance requirements and data protection principles.

Step 12-Regular Compliance Audits and Reviews:

• Conduct regular audits and reviews.
• Stay informed about regulatory developments and updates.

FAQ:

How does GDPR impact US companies?

Even though the GDPR (General Data Protection Regulation) is a European Union regulation, it can have significant implications for companies based in the United States if they process the personal data of individuals in the EU. The GDPR applies to companies outside the EU if they offer goods or services to individuals in the EU or monitor their behavior. This means that US companies that process the personal data of EU residents, either through targeted marketing, online sales, or monitoring activities like website tracking, are subject to GDPR requirements. US companies subject to the GDPR must comply with its requirements, including obtaining valid consent for data processing, implementing data protection measures, honoring data subject rights, and reporting data breaches. Failure to comply with GDPR requirements can result in significant fines and penalties.

What are the three rules of GDPR?

While there are more than three principles outlined in the GDPR, here are three fundamental rules that organizations must adhere to:

Lawfulness, Fairness, and Transparency: This principle requires that personal data is processed lawfully, fairly, and transparently. 

Purpose Limitation: According to this principle, personal data must be collected for specified, explicit, and legitimate purposes and not further processed in a manner that is incompatible with those purposes.

Data Minimization: This principle requires that personal data is adequate, relevant, and limited to what is necessary in relation to the purposes for which it is processed.

What are the special categories of personal data?

Special categories of personal data” refers to sensitive personal data that requires heightened protection due to its sensitive nature. These categories are defined in Article 9 of the GDPR and include the following:

• Racial or Ethnic Origin: Data concerning an individual’s racial or ethnic origin.
• Political Opinions: Data concerning an individual’s political opinions or political affiliations.
• Religious or Philosophical Beliefs: Data concerning an individual’s religious or philosophical beliefs.
• Trade Union Membership: Data concerning an individual’s membership in a trade union.
• Genetic Data: Data concerning the genetic characteristics of an individual, obtained through analysis of a biological sample.
• Biometric Data: Data concerning an individual’s physical, physiological, or behavioral characteristics that can uniquely identify them, such as fingerprints, facial recognition data, or iris scans.
• Health Data: Data concerning an individual’s physical or mental health, including information about medical conditions, treatments, health status, or medical history.