European Union: New GDPR Guidelines Released!!

Last Updated: November 30 2018
Article by David O. Klein

On November 23, 2018, the European Data Protection Board (EDPB) adopted new draft guidelines intended to provide clarity with respect to the territorial scope of the Europe Union's General Data Protection Regulation (GDPR). The highly-anticipated GDPR guidelines provide needed clarification on several key issues, including how the GDPR will be applied to business entities located in different parts of the world, and which businesses will need to appoint a representative in the European Union (EU) to act as a liaison with local supervisory authorities.

Given the severity of the penalties for violations of the GDPR, all US and EU-businesses should closely follow the newly-released guidelines in order to ensure that they are in full compliance with the GDPR.

What Do the New GDPR Guidelines Mean for My Business?

By way of background, the GDPR imposes significant requirements on "data controllers" (business entities that determine the purpose and means of processing personal data) and "data processors" (third party businesses that process data on behalf of data controllers) within the EU, as well as such organizations located outside the EU if the organizations: (1) offer goods and services to persons in the EU; or (2) monitor behavior of individuals in the EU.

The guidelines, in part, further clarify which entities are considered within the EU and which entities that, while located outside the EU, are nevertheless subject to the GDPR. In addition, further guidance is provided on the nature of the EU-based representative that non-EU based entities must appoint as a liaison with EU regulators. Below are some highlights contained within the recent GDPR guidelines:

  • A data controller located outside the EU shall not be deemed to be an EU-based entity merely because that controller's website is accessible in the EU; provided, however, that if even one employee of that data controller works in the EU, that data controller may need to be GDPR compliant if its employee oversees significant business activities and has a long term, stable presence in the EU;
  • A data controller located outside the EU that utilizes an EU-based processor for business activities outside of the EU that do not target EU residents is not subject to the GDPR. However, the EU-based processor in the aforementioned example will be subject to the relevant GDPR provisions that apply to data processors;
  • Where a data controller subject to the GDPR utilizes the services of a data processor located outside the EU (that is not otherwise subject to the GDPR), that data controller must ensure, by written contract or other legally binding act, that its data processor processes its data in compliance with the GDPR;
  • The GDPR applies to data processing/monitoring activities related to any individual who is then-present in the EU, and is not limited in application to EU citizens, legal residents of the EU or any other type of legal status of the data subject (meaning non-EU residents). The requirement that the data subject be located in the EU shall be determined at the moment when the relevant trigger activity takes place, i.e. at the moment that the goods or services are offered to the data subject or the moment when the data subject's behavior is monitored, regardless of the duration of the offer made or monitoring undertaken;
  • Non-EU based entities that are subject to the GDPR must appoint a representative in the EU, but the representative relationship can be based on a service contract entered into with an individual or an organization, such as law firms, consultants and private companies. Please note that this third-party representative may act on behalf of several non-EU based data controllers and data processors; and
  • When the function of representative is assumed by a company or any other type of legal entity, it is recommended that a single individual be assigned as a lead contact and person "in charge" for each data controller or data processor represented.

GDPR Guidelines – Stay Current!

The most recent GDPR guidelines are part of what are expected to be a series of future such guidance released by the European Data Protection Board, making compliance with the GDPR an ongoing affair. As this blog has cautioned repeatedly, the penalties for violation of the GDPR are daunting (the greater of €20 million or 4% of worldwide revenue). Given the potential catastrophic liability, and the ever-evolving GDPR regulatory framework, it is essential to regularly consult with experienced privacy law counsel.

Similar blog posts:

GDPR Data and the Right to Be Forgotten

Comparing the California Consumer Privacy Act (CCPA) and the EU's General Data Protection Regulation (GDPR)

Tips for GDPR Compliant Privacy Policies

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
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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.

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