UK: Will GDPR Prove To Be A Trick Or A Treat For Boards?

Last Updated: 14 November 2017
Article by Liz Bradley

Those that proactively engage with the new data protection regulation will reap the rewards

As the end of the year approaches, legal changes with a 2018 implementation deadline are looming large, and one significant imminent regime is the EU General Data Protection Regulation (GDPR), which comes into effect on 25 May 2018.

The UK's Information Commissioner's Office (ICO) has described the legislation as 'an evolution in data protection regulation, not a burdensome revolution' in its GDPR myth-busting blog series.

Even so, the regulation is a gear-shift in data protection, requiring greater transparency from handlers of personal data, enhancing the rights of individuals over their information and increasing the fines that can be levied for data protection breaches.

Given the pervasiveness of data use across organisations of all shapes and sizes, the changes need careful consideration. Planning will be required to make sure processes comply with the new legal framework and people at all levels of seniority need to be empowered to play their part in keeping data protection on track.

ICSA guidance

A new ICSA guidance note has been written to assist organisations in their preparations for GDPR. The guidance summarises the requirements of the new regulation, as well as providing more detailed support in checklist-style boxes for those closer to the detail of implementation.

Crucially, the guidance also highlights the pivotal role company secretaries can play in supporting the oversight of data protection by boards and other senior decision-makers.

Our goal is to ensure readers understand the changes that are taking place, and are equipped to participate in the discussions and practical action required as a result.

"The ICO described the legislation as 'an evolution in data protection regulation, not a burdensome revolution'"

To that end, the guidance has been produced with the assistance of a working group comprised of ICSA members and the law firm Baker McKenzie, ensuring the topic is covered from both a legal and governance perspective.

Any imminent regulatory change can feel intimidating to get to grips with. Particularly where legislation addresses a sprawling subject, like data protection, it helps to take a step back and evaluate the key areas affected by the new framework.

The guidance note sets out three things to focus on: data basics, dealing with individuals and governance and risk management.

Data basics

Organisations will be hard-pressed to achieve compliance with GDPR's principles without a clear understanding of their personal data use. This means being able to answer questions about what information is being processed and why, and with whom that data is shared.

Data collection and processing must be justified by one or more of the lawful grounds set out in the regulation. The grounds chosen will have implications for the kinds of rights individuals can assert over the data.

For example, changes to the definition of consent will make it harder to obtain, at the same time giving individuals a right to withdraw consent and request the erasure of data provided on that basis.

GDPR defines the term 'personal data', and applies stricter rules to the treatment of data relating to children, sensitive categories of data – for example, relating to race or sexual orientation – and data concerning criminal convictions. It also introduces changes to the existing rules on cross-border transfers of data.

The guidance note is intended to help readers to think through these considerations and begin to systematically build a big picture view of data use within their organisation.

Dealing with individuals

The EU considers the protection of personal data to be a fundamental right.

This is reflected in the breadth of rights given to individuals in relation to their data, including the right to be given certain information (usually within privacy notices); the right to access their own data, or request rectification or erasure of data; and the right to request a restriction to processing or to ask for data to be handed over for use by another processor.

Individuals also have the right not to be subject to automated decision-making.

"It will now be important that records are kept to prove compliance steps are being taken"

The list of possible requests can seem overwhelming at first glance, but GDPR does take into account the position of organisations too.

Most rights can only be asserted in specific circumstances – for example, when data has been collected in a certain way, or is being used for a particular purpose. In some cases, organisations can refuse to accommodate an individual's request, or at least extend the time frame for complying.

Each right is explained in turn within the guidance. Practical considerations are also flagged to help organisations prepare the necessary processes, so that requests can be dealt with correctly and efficiently.

Governance and risk management

The days of writing off data protection as an IT issue are long gone, if they ever existed. GDPR compliance will require a joined-up approach to data protection for a number of reasons.

First, a new accountability principle introduced by GDPR requires organisations to objectively demonstrate compliance with all the other principles in the regulation.

This means organisations will need to minimise the amount of data collected, limit the length of time data is retained for, be transparent about data processing, maintain confidentiality, and take all the other necessary steps to meet their obligations.

However, it will now also be important that records are kept to prove these steps are being taken. This documentation exercise will require the cooperation and input of several different teams, in order to show that data protection is truly embedded across the organisation.

Secondly, GDPR formalises the requirement to protect data by design and default. In this context, by design means that whenever business practices, IT processes or physical infrastructures are conceptualised, maintaining privacy, and data security must be integrated at the outset.

Data protection should be integral to the operation of every process, not added on as an afterthought. Data protection by default also means that as a general rule, only the data required for a specific, identified purpose should be processed. Again, these standards are expected to permeate the whole organisation.

Thirdly, higher fines for breaches of the regulation make it appropriate to treat data protection as a key risk area, integrated into the organisation's risk management framework.

GDPR also requires a number of other procedural issues to be considered, such as the appointment of a data protection officer, the use of data protection impact assessments and a thorough review of processing arrangements to make sure contracts are fit-for-purpose in relation to the new regime.

Supporting oversight

All these examples illustrate the ways in which data protection is now an issue for the whole organisation. As such, it requires effective governance structures and oversight.

The guidance note explains the requirements mentioned above, and sets out various procedural steps organisations should take to comply. However, it also goes further – prompting readers to think about the wider issues of governance that these requirements raise.

For example, consideration should be given to which committees will have responsibility for reviewing the detail and implementation of data protection measures.

Also, a decision should be made on how often and in what way this information will be relayed to the board or senior decision-makers within the organisation. Readers are also encouraged to think about accountability in specific circumstances, for example if a breach notification needs to be made.

"As with all complex changes, it can be tempting to procrastinate"

Decision-makers at the highest levels will need clear, reliable updates from those more closely involved in the management of data throughout the organisation.

Company secretaries are uniquely placed to act as a conduit for this information, helping those tasked with oversight to raise appropriate questions of management, and respondents by highlighting important or missed considerations.

They can also help shape the structure of the reporting lines and support the relevant committees with managing their workloads.

The guidance is also designed to raise readers' confidence in performing this important role, by providing clear explanations of GDPR's provisions and suggestions regarding how to transition to new processes in practical terms.

Excuses, excuses

As with all complex changes, it can be tempting to procrastinate. Organisations must avoid being side-tracked by related discussions that do little to move compliance efforts forward.

For example, many are worrying how Brexit will affect the new regime. The ICO is encouraging organisations to stay focused on preparing for the changes and avoid speculation about the status of these reforms in the future.

GDPR will come into force well before the UK exits the EU, and is supported by parallel national legislation – the Data Protection Bill 2017, currently being considered by the House of Lords.

The message for the time being is one of consistency with the European regulatory regime. The relationship between these two pieces of legislation is also touched on briefly in the guidance note.

Friend or foe

GDPR is happening and will in all likelihood continue to be relevant for years to come. Steps taken now should be treated as the beginning of on-going efforts to understand and control data use. It is therefore worth encouraging a positive attitude towards the changes.

Yes, the up-front work required may be significant, depending on each organisation's starting point, but in getting to grips with the problem, organisations have an opportunity to benefit from improved relationships with individuals – whether current or potential customers, employees, service users or other types of stakeholders.

All organisations need to be ready to comply with the requirements of GDPR. The ICSA guidance note is a tool to help achieve this in practical terms.

Ultimately, those organisations that go further and succeed in creating the general culture of data protection, transparency and accountability envisaged by the regulation will be more likely to be considered trustworthy by the public. And, in the current climate, public trust is a prize worth winning.

Liz Bradley is policy manager, corporate, at ICSA: The Governance Institute



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
Reed Smith (Worldwide)
Barlow Robbins LLP
Dentons
Goodman Derrick LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Reed Smith (Worldwide)
Barlow Robbins LLP
Dentons
Goodman Derrick LLP
Related Articles
 
Related Video
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