New Zealand: Privacy law shake-up! What does the EU General Data Protection Regulation (GDPR) mean for your company?

Last Updated: 29 June 2018
Article by Bethany Entwistle

Unless you're willing to pay a fine of up to 4% of your company's annual global turnover or €20 million for failing to comply with the European Union's General Data Protection Regulation (GDPR), it's time to review your company's privacy policy and practices.

The GDPR imposes new obligations on companies, big or small, that handle personal data of EU citizens. Its purpose is to strengthen and unify the privacy and data protection rights of EU citizens, giving them more control over how their personal information is used, stored and shared by companies. 'Personal data' means any information relating to an identified or identifiable natural person (data subject).1

The key aspects of the GDPR that your company needs to be aware of include:

  1. Notification of a data breach – a data breach must be reported (to the NZ Privacy Commissioner and in some instances the data subject) within 72 hours of becoming aware of the breach.
  2. Right to be forgotten – each data subject is entitled to have his/her personal data erased. This right is not absolute and is to be balanced with public interest in the availability of the data, among other considerations.
  3. Right to access data – each data subject has the right to confirmation as to whether personal data concerning them is being processed and for what purpose.
  4. Data portability – each data subject has the right to receive the personal data concerning them.

The focus of this article is on the first two aspects. It will also address relationships with third party data processors. Ultimately, we recommend seeking legal advice in respect of your company's privacy policy to ensure all requirements of the GDPR are met.

As an aside, it is worth noting that a primary purpose of New Zealand's Privacy Bill (due to come into effect on 1 July 2019) is to give effect to internationally recognised privacy obligations, including the GDPR.

Notification of a data breach

What is a data breach?

To enable your company to meet its 72-hour reporting obligation, it is imperative that you implement a suitable reporting system. To begin with, you and your employees must understand what a data breach is.

Under the GDPR, a data breach is defined very broadly as "any accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access of a data subject's personal data". In practice, it may look like:

  • The loss/stealing of a laptop, tablet or phone which stores EU citizens' personal data (all devices containing personal data should be fully encrypted, locked with a PIN/password and have full up-to-date backups of all data).
  • Sending an email containing EU citizens' personal data to the wrong person (when sending personal data via email, always check that it is being sent to the right person. Address auto-completion may cause you to email the wrong person without realising).
  • Disposal of confidential papers which contain EU citizens' personal data (the papers or resulting waste should never be left in a place accessible to outside parties).
  • Sharing passwords (you cannot control how many times a password is shared and third parties may gain inappropriate access to personal data).
  • Copying files containing EU citizens' personal data to USBs (USB memory keys and USBs in general can allow personal data to be taken from company computers and be innocently shared).
  • Altering the personal data of an EU citizen without permission.

When should you report a breach?

A data breach should always be reported to the Privacy Commissioner, as New Zealand's statutory authority. If a data breach is likely to result in a high risk to the rights and freedoms of natural persons it should also be communicated to the data subject concerned, without undue delay.2

The GDPR Guidelines provide non-exhaustive examples of circumstances where a risk to data subjects may be considered unlikely. These are where:

  1. Personal data leaked is already publicly available;
  2. Personal data leaked is encrypted with a state-of-the-art algorithm, or securely hashed, and the key remains confidential and cannot be independently ascertained;
  3. There is a very temporary loss of access to personal data; and
  4. Personal data is accidentally sent to third parties that can be trusted, due to their relationship with the data controller organisation, to comply with instructions.

The Right to be forgotten

Under Article 17 of the GDPR, individuals have the right to have personal data erased. This is also known as the "right to be forgotten". The right is not absolute and only applies in certain circumstances. Individuals have the right to have their personal data erased if:

  1. The personal data is no longer necessary for the purpose which you originally collected or processed it for;
  2. You are relying on consent as your lawful basis for holding the data, and the individual withdraws their consent;
  3. You are relying on legitimate interests as your basis for processing, the individual objects to the processing of their data, and there is no overriding legitimate interest to continue this processing;
  4. You are processing the personal data for direct marketing purposes and the individual objects to that processing;
  5. You have processed the personal data unlawfully;
  6. You must do it to comply with a legal obligation; or
  7. You have processed the personal data to offer information society services to a child.

You can refuse to comply with a request for erasure if it is manifestly unfounded or excessive. In this instance, you can either request a "reasonable fee" to deal with the request or refuse to deal with it. In both cases, you will need to inform the data subject and justify your decision.

Third party data processors

It is important to keep in mind that a data breach by your company's third-party data processor may result in a data breach by your company (as the controller of that data). To reduce the risk of this happening you should write to your third-party data processors to ascertain their understanding of the GDPR, their obligations, and their intention to comply with those obligations.

You should seek an undertaking from the third party that it is complying / will comply with the GDPR. This should include an obligation on the third party to notify your company of a data breach, as well as the Privacy Commissioner in the first instance.

Conclusion

The new obligations under the GDPR pose many challenges for New Zealand companies. Considering the hefty fines, it is crucial that every company, big or small, understands its obligations and implements watertight methods for compliance.

For many, this will not be a straightforward exercise, particularly where third-party data processors are involved. If you need assistance reviewing your company's privacy policy and practices, reporting processes, or dealing with third party data processors, the experienced team at Wynn Williams is here to help.

Download article in PDF format

RELATED ARTICLES

The power of 'big data' and privacy reforms

Footnotes

1 an identifiable natural 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 or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

2 GDPR, article 34.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Bethany Entwistle
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions