United States: The EU's General Data Protection Regulation: Why It Matters To You

Last Updated: July 9 2018
Article by Carl Johnston, Steven C. Papkin and Martin B. Robins

The European Union has traditionally been more protective of privacy than the United States, which has led to substantial challenges for many US companies. Those challenges are now greater and affect many more US businesses as a result of the recent EU adoption of the General Data Protection Regulation (GDPR), which represents a sea change compared to prior law. Rather than a mere rule or two, the GDPR is a complicated set of myriad requirements. Frequently, a major misconception is that GDPR requires only an update to a company's privacy policy and compliance with such new policy, but as noted below, there are numerous other provisions which are equally important. We also anticipate companies being required to make representations and warranties regarding GDPR matters in M&A and finance transactions. While a detailed analysis is beyond the scope of this newsletter, the following can serve as an introduction to some key provisions.

Expanded Territorial Scope

GDPR has a much broader territorial scope than prior EU law. It applies to the processing of data by companies with an EU "establishment". The term "establishment" is not precisely defined, but some consider it to mean regular activity in the EU and/or consistent interaction with EU citizens. Accordingly, the GDPR applies to any individual or business that collects or processes personal data of any EU individual or monitors the activities of EU residents, notwithstanding the lack of physical presence in the EU. As a result, many US companies with no physical presence in the EU are now subject to GDPR based on customers or other business contacts with EU residents. Companies that do not have an establishment in the EU but that are subject to GDPR are also required in many cases to appoint a personal representative in the EU, which will in effect make the company subject to EU jurisdiction despite the absence of an EU presence. However, it is always essential to determine if a company is in fact obtaining any personal information from anyone in the EU or have taken steps to avoid doing so.

Data Mapping

In order to determine required steps for compliance, it is essential to "map" one's data. This means determining what data is being collected, from whom and where it is going for storage, processing or otherwise, and then creating and maintaining a written record of the foregoing.

Consent and Other Requirements

One of the many huge changes from prior EU law is found in the area of consent to collection and use of personal data. In most cases GDPR now requires recorded affirmative consent to the collection, use, and storage of personal information of an EU resident; opt-outs are not sufficient. The request for consent must meet a number of strict requirements, including that the request: (i) be presented in plain, clear language; (ii) include the purposes for collecting and processing the data; and (iii) be freely given, specific, informed and unambiguous. GDPR further requires that data subjects have a broad set of rights, including access to their data, rectification of any incorrect personal data, erasure of personal data (also known as the "right to be forgotten"), and data portability.

Data Transfers

Under GDPR, transfers of personal data from the EU to the US may occur only if special frameworks are in place to guarantee "essentially equivalent" protection of the data. These include, among other things, adopting EU-approved Standard Contractual Clauses and enacting Binding Corporate Rules for intra- company transfers. Such transfers often require the presence of agreements with counterparties to govern security and usage. Such agreements will often involve companies asking each other to acknowledge that they are "data processors" or "data controllers." Being a data processor or data controller entails significant legal obligations, so undertaking such roles should only be done after careful consideration.

Data Protection Officers

Many organizations must now formally designate a qualified Data Protection Officer (DPO) who is responsible for the organization's efforts, and other organizations may find it advisable to do so even if not required. The DPO must be vested with appropriate authority to implement applicable requirements, possess pertinent knowledge and training, and have no other duties that could create a conflict of interest with his or her data protection duties for the company.

Compliance and Enforcement

The above is only an introduction and a partial list of the new requirements. GDPR will clearly impose substantial new burdens on many companies and potentially alter how they do business. GDPR was published in 2016, giving companies two years to prepare, and now EU regulators are poised to begin enforcement. Compliance is crucial given that potential penalties are as much as the greater of twenty million Euros or four percent of worldwide annual revenue.

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.

Similar Articles
Relevancy Powered by MondaqAI
Klein Moynihan Turco LLP
In association with
Practice Guides
by Mondaq Advice Centers
Relevancy Powered by MondaqAI
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Klein Moynihan Turco LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please 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.


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.


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