European Union: GDPR - The New Era Of Privacy Protection

Last Updated: 29 May 2018
Article by Shrivalli Kajaria

General Data Protection Regulation or GDPR is the new privacy protection regulation of the European Union which was adopted on 26th April 2016 and has to come into effect on 25th May 2018. The nucleus of the GDPR is to reinforce data protection for individuals not only within the territory of EU but extends to secure export of Personal Identifiable Information (PII) from the territory of EU.

GDPR replaces the existing Data Protection Directive and aims at harmonising laws across the entire EU.

Parties Involved

  • Data Controller that is the ones who decide upon the purpose of the data.
  • Data Processors that is the ones who directly are in the act of processing of the data.
  • Data Subjects that is the citizen's of EU who takes the services of the data controller.

Within these data controller and processors there are essentially two categories which the new legislation aims to cover:

  • A presence in an EU country of the controller or the processor.
  • Not present in EU but organisation deals in data belonging to the EU citizens.

What 'Personal Data' does GDPR covers?

The new legislation by the term personal data means to cover any information which is used to identify a person (natural person) this includes:

  • Basic identity information such as name, email, address, and online ID numbers;
  • Web data such as location and IP address;
  • Health, genetic, mental and biometric data;
  • Racial or ethnic data;
  • Political opinions;
  • Cultural or social identity.

Appointment of a Data Protection Officer

The legislation mandates the appointment of a data protection officer where processing activity is being carried on by public authority except for courts in their judicial capacity, also when the core activity of the controller and the processor is such that it requires systematic monitoring of the data subjects or when the processing of data relates to people involved in criminal convictions.

Key Policies

The focal point of the policy is the consent factor. Companies will now have to take proper and informed consent from the person who is sharing Personally Identifiable Information (PII), any sort of vague or confusing statements cannot be used future onwards in order to extract personal information. This is a major shift from the idea where the companies used to have a single consent box and by checking in the box users tend to consent on a number of things, as now consent has to be taken individually.

Withdrawal from consensual record of the data has to be as easy as consensually submitting the data and this is the point of convergence of the new regulation. The law now mandates the guardian to opt in for a child below 16 years in regard to any sharing of personal information.

Consumers now have enormous control over the data, they will be able to access the personal data being stored in, inspect as to the purpose for which the data is being used and have the 'right to be forgotten' that is ask the data controllers at any point of time to erase the data existing with them.

The new law takes into account even the measures to be taken in case of any breaches. The companies will now have to within 72 hours of becoming aware of any data breach inform the protection authority as well as the customer whose data is under threat without any undue delay.

Effect of GDPR on Websites

Websites will need to comply with GDPR in respect of both privacy policy and cookie policy. The websites now ought to have privacy policy which is concisely clear and transparent. Meaning thereby that the policy should be written in plain language rather than complicated and make it easy for the users to understand. The key is that the users have to be well informed of the data which is being collected from them.

Since GDPR covers all forms of personal data, cookie policy has came into picture. Cookies store unique information about the user thereby storing the personal information hence cookie consent has to be enabled.

Implied consent is no longer sufficient that is the users will have to expressly consent to the data which is being collected by cookie. This means that the websites which show pop up stating that 'by using the website you agree with the cookie policy' are no longer sufficient.

Penalty

An organization in breach of GDPR laws will be fined up to 4 percent of annual global turnover or 20 million Euros ($24.6 million), whichever is bigger.

Impact of GDPR on Indian Market

The main question which sails through the mind of most Indians is whether GDPR will apply on Indian Data Processing Companies or is the law restricted to only the EU companies. This question demands looking into Article 3 of the regulation which has laid down the territorial scope of the policy.

Further the definition of data processor has been given a wide connotation in the legislation. It means any operation performed on personal data such as collecting, recording, structuring, storing, using, disclosing by transmission and includes erasing and destroying. Article 3 makes it precise that it shall apply to all companies and organisation whether within EU or not.

The dilemma then arises as to whether in the absence of any sort of treaty can EU legislation have such an extra territorial reach? The answer to this is simple, that the EU legislation intends to apply to only those extra territorial organisations which have EU citizens as their data subjects. The fact that it involves the citizens of their territory the law is binding on the other countries as well including Indian companies which tend to deal with EU as data subjects.

In a nutshell GDPR aims to cover any organisation in the EU that handles personal data and any individual in the EU whose personal data is handled by an organisation, wherever that organisation is based. Europe has always been a substantial marketplace for the IT's, BPO and Pharma companies. The IT companies estimate for about 155–220 billion USD in the European member states. Thus for an Indian IT company to continue its relations with EU it has to mandatorily follow the GDPR.

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
Reinhart Boerner Van Deuren s.c.
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Reinhart Boerner Van Deuren s.c.
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