European Union: An Overview Of The New General Data Protection Regulation

The European Parliament has approved the reformed General Data Protection Regulation (the "GDPR"). Given this is a Regulation (rather than a Directive), this legislation will apply automatically in every Member State (without need for additional domestic legislation) when it comes into force on May 25 2018.

Many of the requirements are similar to those set out in Directive 95/46/EC (the "EU Directive"), however there are certain key differences.  The table below summarises the key changes.

Topic The current position The new GDPR position Comment
Transparency in data processing Data must be fairly and lawfully processed. Data will need to be processed fairly, lawfully and transparently. This requires a business to provide information in clear, intelligible and plain language in an easily accessible form. In line with this, privacy policies will need to be clear, understandable and easily accessible. These changes place the onus on businesses to provide clarity and transparency to ensure individuals can understand clearly how and why their data is being processed and removing the scope for businesses to hide behind technical jargon.
Consent Consent is a valid basis for transferring data, however the consent needs to be "freely given and unambiguous".

Many companies include consent wording in employment contracts to cover data gathering and transfers. There has been debate as to whether such consent is valid or not.

Regulators have generally disapproved of using consent to enable data processing. Now there are more detailed conditions for using consent, namely consent must be "freely given, specific, informed, and unambiguous". In cases of sensitive personal data it must also be "explicit".

The GDPR goes on to say that " the context of a written declaration which also concerns other matters, the request for consent must be presented in a manner which is clearly distinguishable from the other matters...".

The new requirements will make consent even more difficult to rely upon as a valid basis for transferring data including where consent is given in the context of agreeing terms of employment.
Data subjects rights Data subjects have explicit rights to rectification and erasure. The right to be forgotten was introduced through case law. Individuals' rights have been extended to explicitly include the right to be forgotten, the right to switch personal data between service providers (known as data portability), and the right to know if their data has been hacked. These expanded rights strengthen the controls that individuals have on the use of their data. However, the rights will significantly impact businesses, particular those that rely on the gathering, analysis and transfer to third parties of personal data.
Subject Access Requests To make a subject access request, individuals must go through a number of steps. In the UK, this includes writing  to the business specifying the information sought and paying a fee of up to £10. The business must respond to the request promptly and certainly within 40 days of receipt. In most cases a fee will no longer be payable, and business will only have a month to comply with a request. However, a business can refuse to act on the request if it is "manifestly unfounded or excessive". Additional information will need to be provided to the person making the request e.g. data retention periods. The time to respond to a request is shortened which will create an additional burden on the business, but the ability for a business to refuse to act on a request that is "manifestly unfounded or excessive" will be welcomed.
Data Protection Officers ("DPO") Although there is no requirement to have DPO, some business have appointed one internally, or appointed an independent third party to carry out this role (this enables certain businesses to exempt themselves from certain notification requirements). All public authorities must appoint a DPO. Certain other businesses whose activities involve "regular and systematic monitoring of data subject on a large scale" or the large-scale processing of "special categories of personal data" will need to appoint a DPO to oversee compliance. It may be difficult for businesses to ascertain if they are required to appoint a DPO and will increase the administrative burden on those required to do so.
Multi-jurisdictional businesses Non-EU companies who targeted EU citizens do not necessarily have to comply with the EU Directive. Businesses that target the EU, i.e. offering goods or services to EU citizens or monitor the behaviours of EU citizens, even if the business itself is not based in the EU, will be subject to the GDPR. This change will significantly increase the extra-territorial reach of European data privacy legislation.
"One-stop shop" Businesses have to deal with the requirements of each of the different data protection authorities of every jurisdiction in which they operate. As the EU Directive was implemented differently in different jurisdictions this means that currently, different jurisdictions have different requirements. Businesses targeting the EU and/or operating in the EU and processing data in multiple EU jurisdictions will have to establish the location of their "main establishment" to determine which Member State's data protection authority's control the business comes under. This is the so called "one-stop shop" so that it is easier to do business in the EU as a business will no longer need to deal with different data protection authorities in different jurisdictions.
Enforcement Currently, each local data protection authority is responsible for determining the level of any fines imposed. For example, fines in the UK are currently set at £500,000 maximum, though most fines that the UK data protection authority has imposed are substantially lower. This is similar to other EU Member States. The ability to impose harsher penalties will be introduced. The maximum penalty for non-compliance will become the higher of EUR20 million and 4% of an undertaking's worldwide turnover. Given the disparate fines across the EU as well as the concept of the "one stop shop", how data protection authorities in each Members State enforce the GDPR remains to be determined.  However, the GDPR gives the scope to impose fines that are substantially larger than those commonly imposed at the moment.

Next steps

After much waiting, we now have the final version of the new legislation which means businesses are now able to start preparing for its implementation.  Practical steps to help get prepared include appointing a person or team (either internally or externally) that can audit current data protection policies and procedures and identify the changes needed to ensure compliance with the GDPR. The review should cover a broad range of areas including:

  • the structures in place for processing employee data, client and customer data;
  • any data protection policies and/or notices;
  • agreements in relation to the transfer of data, including international transfers of data;
  • default data retention periods;
  • the processes for handling data breaches;
  • IT changes needed to implement changes identified; and
  • whether there is a need to appoint a DPO.

An Overview Of The New General Data Protection Regulation

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.