European Union: A Primer On The GDPR: What You Need To Know

Now that it's been approved by the EU Parliament's Civil Liberties Committee, Europe's General Data Protection Regulation (the "GDPR" or the "Regulation") is well on its way to replacing the 20-year-old Data Protection Directive (the "Directive") as the EU's omnibus data protection law. Although it won't officially become law until it receives the approval of the EU Parliament, now is the time to study the most important aspects of the GDPR so you can be prepared for the new regime.

Why replace the Directive?

The technology landscape was very different 20 years ago, when the Directive was first adopted. Today, with the widespread usage of social media, apps, and the Internet generally, personal data is being shared and transferred across borders more than ever before, and many felt that the Directive was due for an overhaul in light of all these changes.

Moreover, the Directive was limited because it was just that – a directive. As a directive, it could only set the minimum legal standards the EU member states had to meet in their own data protection laws; the member states otherwise could craft their own laws as they saw fit. This led to a patchwork of data protection laws across Europe, with some countries implementing more stringent (and occasionally more unique) laws than others.

The GDPR is meant to solve this problem. As a regulation, as opposed to a mere directive, it directly imposes a uniform data security law regime on all EU members. There is no need for a member state to enact legislation in order to make the GDPR law within that country; once the GDPR is passed, it will become the law in every member state, thereby harmonizing EU data protection law from A(msterdam) to Z(agreb).

What are some of the major ways the GDPR differs from the Directive?

  • Territorial scope. Article 3 of the GDPR states that the Regulation applies to the processing of personal data of data subjects located in the EU, even if the relevant controller or processor is not established in the EU, provided that the processing relates to the offering of goods or services to the data subjects (whether or not payment is required), or the monitoring of data subjects' behavior. In practical terms, this means that any company that markets goods or services to EU residents may be viewed as subject to the GDPR, regardless of whether the company is located or uses equipment in the EU or not. This provision essentially makes the GDPR a worldwide law, as many entities – think app developers to e-commerce companies and multinational corporations – want or need access to the European market, even if they do not have any European offices. In contrast, the Directive was not as expansive in its geographic reach.
  • Increased fines for violations. One of the provisions getting the most attention is Article 79, which states that a company that violates certain provisions of the GDPR – such as the basic processing principles (see description of Article 5 below) or the rules relating to cross-border data transfers – may be subject to fines amounting to 4% of the company's total worldwide annual turnover. Four percent may not seem like much, but in reality this could mean millions, even billions, of dollars in fines for large companies that violate the GDPR. Also, given the risk of incurring a significant fine for a violation, this provision underscores the importance of implementing a mechanism that allows for the legal transfer of personal data from the EU to the US, such as binding corporate rules (see below).
  • Greater control for data subjects. Article 18 of the GDPR grants data subjects a "right to portability" with regard to personal data of theirs that is automatically processed. This provision allows data subjects to more easily transfer their personal data from one controller to another, which will come in handy when, for example, a data subject wishes to change service providers and transfer his or her personal data from one service provider to another. A data subject also has the right to receive any personal data he or she provided to the controller and is being processed via automated means "in a structured and commonly used and machine-readable format." Also, Article 17 sets out the "right to erasure," also known as the "right to be forgotten," which gives a data subject the right to order a controller to erase any of the data subject's personal data in certain situations. Article 17 requires a controller to erase a data subject's personal data "without undue delay" when the personal data is no longer necessary in relation to the purposes for which it was collected or processed, or the data subject withdraws his or her consent or objects to the processing and there is no other legal basis for the processing, among other grounds. A controller may be obligated to restrict processing where the data subject contests the accuracy of the data, as well as in certain other situations set out in Article 17a.
  • Data protection officers. Article 35 requires companies whose "core activities" involve large-scale processing of "special categories" of data – defined as information that reveals a data subject's racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, genetic data, biometric data (if processed in order to uniquely identify a person), health or sex life, or sexual orientation – to designate a data protection officer. Companies should be aware that even if they do not collect this type of information from their customers, they may collect some of this information from their employees for human resources purposes, and therefore may need to appoint a data protection officer. Under Article 37, data protection officers must provide advice about, and monitor compliance with, the Regulation, as well as serve as the contact person for communications with the relevant supervisory authority.
  • Data breach notification. Under the Directive, member states were free to adopt different data breach notification laws, which meant that companies that suffered data breaches in the EU had to research and ensure compliance with the appropriate requirements. However, Article 31 of the Regulation sets out a single data breach notification requirement designed to be applicable across the EU. The rule requires controllers to notify the appropriate supervisory authority of the personal data breach within 72 hours of learning about the breach. The notification must describe the nature of the personal data breach, the categories and approximate number of data subjects implicated, the contact information of the organization's data protection officer, the likely consequences of the breach, and the measures the controller has taken or proposes to take to address and mitigate the breach. Additionally, a processor is required to notify a controller of a data breach "without undue delay." Article 32 requires controllers to notify data subjects of breaches "[w]hen the personal data breach is likely to result in a high risk [to] the rights and freedoms of individuals" and must notify data subjects of the breach "without undue delay." The notification must include the contact information of the company's data protection officer, the likely consequences of the breach, and the remediation and/or rectification measures the company has taken or intends to take to address the breach. However, the controller does not have to provide notice to data subjects if the controller (1) had implemented "appropriate technical and organisational protection measures" and applied those measures to the affected data; (2) took subsequent measures to ensure that the risk to data subjects' rights and freedoms would be "no longer likely to materialize;" or (3) notification would require "disproportionate effort," in which case a public communication would be sufficient as long as the data subjects were notified "in an equally effective manner."

Are there any important points on which the GDPR is similar to the Directive?

Yes – one of the most significant of these is consent. Similar to the Directive, the Regulation provides that consent is a valid basis for processing personal data, and in Article 4 defines consent as "freely given, specific, informed and unambiguous" (the Directive defines consent, in Article 2, as "freely given specific and informed"). Under the Directive, employees generally could not be viewed as freely giving consent to their employers' processing or cross-border transfer of their personal data given the inherently unbalanced power dynamic in the employer-employee relationship. As the Regulation's language on consent mirrors that of the Directive, we may assume, for now, that the same restrictions on employee consent will remain.

What about the Directive's data protection principles? Does the Regulation change those in any way?

One of the key components of the Directive is its list of "Principles Relating to Data Quality" in Article 6. Under Article 6, member states had to require that that personal data be processed fairly and lawfully; collected for specified and legitimate purposes; adequate, relevant, and not excessive given the purposes for which the data was collected and processed; accurate and kept up to date, where necessary; and kept in a form that allowed for the identification of data subjects for no longer than necessary given the purposes for which the personal data were processed.

Article 5 of the Directive maintains and expands upon these principles, even giving each principle a name – the first principle, for example, is labeled "lawfulness, fairness and transparency." It also adds an additional "integrity and confidentiality" principle, which requires that data be "processed in a way that ensures appropriate security of the personal data." The Regulation, like the Directive, also states that controllers must demonstrate compliance with these principles.

How does this affect the US-EU Safe Harbor?

As you may recall, the US-EU Safe Harbor program was declared invalid this past October. While the GDPR does not provide for a new Safe Harbor program, it is important to note that the Directive did not envision a Safe Harbor program either; instead, the Safe Harbor program was implemented five years after the Directive, pursuant to Decision 2000/520/EC. (It was this Decision that the European Court of Justice invalidated this past October, which in turn essentially ended the Safe Harbor program.) In other words, just because the GDPR doesn't specifically provide for a Safe Harbor program doesn't mean there isn't a new Safe Harbor program on the horizon. Indeed, American and European officials have been negotiating the contours of Safe Harbor 2.0 and hope to reach an agreement by January.

In the meantime, Chapter V of the GDPR, which deals with cross-border data transfers, indicates that binding corporate rules ("BCRs") and standard contractual clauses remain valid tools for transferring personal data outside the EU. Unlike the Directive, the GDPR even details the basic requirements for BCRs in Article 43; until this point, the BCR requirements had been set out in a series of Working Documents published by the Article 29 Working Party, and those drafting the BCRs had to cross-reference the various documents in order to piece together a truly comprehensive picture of what to include. Moreover, the GDPR's approval of mechanisms such as BCRs and standard contractual clauses alleviates the concern that some member states' data protection authorities will follow Germany's lead in declaring that these tools offer insufficient protection for personal data transfers to the US.

When would the GDPR become effective?

If approved, the GDPR would not become effective until 2018, giving companies time to ensure compliance with the new law.

Please check back for additional updates on the GDPR and its implementation.

A Primer On The GDPR: What You Need To Know

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.

In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.