European Union: An Introduction To The European General Data Protection Regulation

Last Updated: January 19 2016
Article by Mark Hines

Most Read Contributor in Canada, October 2018

A new regulation

In January 2016, the European Commission revealed a draft of its General Data Protection Regulation to replace the previous Data Protection Directive, which was created to regulate the collection and use of personal data within the European Union.

The purpose of the new regulation is to harmonise differing data protection laws in force across the European Union. Importantly, because the legislation is a "regulation" instead of a "directive," it will be directly applicable to all EU member states without a need for national implementing legislation.

Overview of key changes

The impact of the Data Protection Regulation will be broad. Some of the key changes are:

  • Single set of rules – A single set of EU-wide rules on data protection, removing burdensome administrative requirements.
  • Single authority (sort of) – Companies will only have to deal with the data protection regulator in their main EU jurisdiction. That regulator will have to consult with regulators in other EU countries whose nationals are affected or who have an interest in a particular matter.

The regulation also creates a super-regulator. The new European Data Protection Board will include the head of each national data protection regulator and the European Data Protection Supervisor or their respective representatives. It will also issue guidance and will be empowered to resolve disputes among the national regulators.

  • Definitions of data – The scope of "personal data" has expanded slightly.  In addition, two new categories of data – genetic and biometric – are included on a list of "sensitive data," which also includes racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership and data concerning health or sexual orientation.
  • Pseudonymized v anonymized data – Pseudonymized data remains personal data because it can be re-associated with a specific consumer. The regulation does not apply to fully anonymized data.
  • Consent – Consent must be freely given, specific and informed. Importantly, if consent is required, it has to be express – "clear affirmative action by the data subject."

However, there are limitations on consent. Consumers cannot be asked to agree to any unfair contractual terms in exchange for their consent. Similarly, consent is not valid where there is "a clear imbalance [of power] between the [consumer] and the [company]."

Different types of data uses require separate consent. As a result, an "all or nothing" choice is not permitted.

Consent is not valid in the context of a contract if the consumer must give consent for use that is not necessary for the performance of the contract. This will significantly affect the business model of free apps or services that rely on selling user data to pay for the costs of providing the service.

  • Internal controls – The regulation requires companies to have internal data protection policies and procedures, which may have to be produced in the event of a complaint. Data breaches and subsequent investigations must also be documented.

The regulation requires "privacy by design" in information management systems, which means that security measures need to match the risk of a data breach and potential harm to consumers. In addition, impact assessments are required when a proposed data processing activity poses a "high risk for the rights and freedoms of individuals."

  • Data protection officer – Companies must have a data protection officer if they process sensitive data on a large scale or have large scale customer databases. SMEs (less than 250 employees) will be exempt from this requirement unless personal data processing is a core part of their business.
  • Data portability – Consumers will have easier access to their data and will be able to transfer it more easily between service providers.
  • Right to be forgotten (erasure) – Consumers will be able to delete their personal data if there are no legitimate grounds for retaining it.
  • Breach notification – Companies are required to notify their national data protection regulator of all breaches within 72 hours unless "the personal data breach is unlikely to result in a risk for the rights and freedoms of individuals."

Breaches must also be disclosed to the affected consumers "without undue delay if the personal data breach is likely to result in a high risk" to their "rights and freedoms."

  • Significant fines – Data protection regulators will be given increased powers to enforce the regulation, including fines of up to 4% of worldwide turnover of the offending "undertaking" – essentially, a corporate group.
  • Class actions – The regulation authorizes a form of class action. However, this type of action can only be brought by a public interest organization – a "body, organisation or association which is of non-profit making character, whose statutory objectives are in the public interest and which is active in the field of the protection of personal data."

Companies can still be sued in the home country of a consumer.

Impact on Canadian companies

It is important for Canadian companies to know that the General Data Protection Regulation applies outside of the EU. Those subject to the regulation include:

  • Companies that monitor the behavior of consumers who are located in the EU
  • Companies based outside of the EU, which provide services or goods to the EU
  • Companies with an "establishment" in the EU, regardless of where they process personal data (That means that cloud-based processing performed outside of the EU for an EU-based company is covered by the Regulation.)
  • Data processors as well as data controllers are directly liable under the Regulation

In addition, the regulation imposes obligations on companies that transfer personal data outside of the EU:

  • Transfers of employee data within a corporate group are not exempt from the rules on transfers outside of the EU.
  • There is a new basis for transfers that are not "repetitive and that only concern a limited number of [consumers]," where the company has considered the transfer, imposed safeguards and has a "compelling" legitimate interest in the transfer that is not outweighed by that of the consumer.
  • Certification programs – like Safe Harbor – may be approved as a basis for transferring data outside of the EU.
  • The EU Commission can now make sector-specific adequacy determinations – for example, health or financial data.

Given the extent and reach of the obligations imposed by the General Data Protection Regulation, Canadian companies collecting data in, or using data from, the EU will need to ensure that they alter their operations appropriately. If they do not, significant business interruption and potential liability could ensue.

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

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

Similar Articles
Relevancy Powered by MondaqAI
Langlois lawyers, LLP
Pallett Valo LLP
Norton Rose Fulbright Canada LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Langlois lawyers, LLP
Pallett Valo LLP
Norton Rose Fulbright Canada LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
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 (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

To Use 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