European Union: European DPAs Issue First GDPR Guidance

On Friday, the Article 29 Working Party issued official guidance relating to the General Data Protection Regulation, or GDPR (which we've covered in previous posts here and here). The Article 29 Working Party is comprised of representatives of the various EU Member States' data protection authorities (DPAs), so this marks the first time that the DPAs have revealed their thoughts on how they plan to interpret and enforce specific GDPR provisions.  This is welcome news for companies that, until this point, have been left to figure out compliance strategies without any indication as to how some of the newer concepts the GDPR introduces will operate in practice when the Regulation begins to apply in 2018.

The new guidance takes the form of three separate sets of guidelines: one addressing the right to data portability, another on identifying the lead supervisory authority for a controller or processor, and a third on data protection officers. Each set of guidelines contains a detailed analysis of its specific topic and includes examples illustrating methods of compliance.  Some of the most important points are summarized below.

Guidelines on the Right to Data Portability

For many companies, the GDPR's provisions relating to data portability present some of the biggest hurdles to achieving compliance by the time the GDPR begins to apply in May 2018. Article 20 of the GDPR states that a data subject has the right to receive the personal data that he or she has provided to a controller "in a structured, commonly used and machine-readable format," and to transmit that data to another controller (for example, a different service provider).  It goes on to clarify that this provision applies in situations where the controller's basis for processing the data subject's personal data is based on the data subject's consent or on a contract to which the data subject is a party, and if the processing is carried out by automated means.  Article 12(3) requires that controllers provide the requested information to the data subject without undue delay, but otherwise within one month of the receipt of the request (or three months for complex cases, in which case the data subject should be notified of the reasons for the delay).

While the Directive currently provides data subjects with a right of access to their data, Article 20's data portability right is different – and potentially more onerous for controllers. The provision is meant to give data subjects more control over their personal data, but for many companies, developing the capabilities to provide individuals with GDPR-compliant data transfers may take a significant amount of effort and resources over the next year and a half.  For example, a company may have to assess where it stores customer data (and it may not all be in one place), evaluate what type of data it has collected, and implement a system that can generate the required transfers for those individuals that request them.

Unfortunately, this new guidance does not provide much peace of mind for data controllers, as it illustrates the considerable breadth of data the regulators consider to be subject to this provision. Some notable points are broken down below.

  • How Portable Data Should Be Provided to Users

    • The guidelines recognize the many types of data that data subjects may request, and therefore clarify that there is no one appropriate format for providing this data, as long as it is "interoperable" for ease of sharing with other controllers.
  • Types of Processing Operations that Fall Under the Scope of Data Portability

    • The guidelines re-emphasize the point that only data processed by automated means is subject to the data portability provision, and that paper files therefore are outside the scope of data portability.
    • The guidelines provide two examples of the types of data typically collected pursuant to a contract with a data subject: information subject to the data portability requirement includes titles of books published from an online bookstore, or songs listened to via a music streaming service. These examples provide a reminder of the wide scope of the definition of "personal data," and give insight into the considerable range of transactions that regulators could consider to arise out of a controller's contract with a data subject.
  • Data "Provided By" a Data Subject

    • The data portability right applies only to personal data "provided by" a data subject. However, this includes data beyond that knowingly provided by a data subject, such as name and address. A data subject may be considered to have "provided" data that was generated as a result of the individual's use of a service or device. Examples include search history, location data, and browsing behavior.
  • Data Retention and Erasure

    • Data portability does not affect data retention.  In other words, a company does not have to retain personal information just in case a data subject chooses to exercise his or her data portability right.  Likewise, a data subject's data portability request is not, alone, to be taken as a request to delete that individual's personal data.  Retention requirements with regard to personal information apply in parallel to portability requirements.
  • Rights of Third Parties

    • Some of the data that must be transmitted to a data subject who has made a data portability request will contain the personal information of third parties. The "new" controller (i.e. the entity to which the data subject transmits the data) must respect the privacy rights of these third parties. For example, if a webmail provider transmits the data subject's email contact directory to the data subject, and that individual then transfers the directory to a new provider, the new provider cannot then use the third parties' data for a purpose other than that for which it was originally collected. It cannot use the email addresses included in the directory to send its own marketing emails, for example. The guidelines recommend that controllers implement tools that will allow data subjects to exclude third party data from their portability request, and/or tools allowing third parties to consent to the transfer of their personal data.
  • Informing Data Subjects

    • Controllers must notify data subjects about the new right to data portability, and must "distinguish" this right from other rights. The Article 29 Working Party recommends that controllers make clear to data subjects what data they may request and receive when exercising their data portability right – a suggestion that may be hard to implement without an even fuller list of examples of the types of data subject to this requirement.

Guidelines for Identifying a Controller or Processor's Lead Supervisory Authority

This set of guidelines is especially helpful for those companies that carry out "cross-border processing of personal data," which GDPR Article 4(23) defines as processing that takes place when a controller or processor has establishments in multiple Member States, or where the controller or processor is established in a single Member State but the processing "substantially affects or is likely to substantially affect" data subjects in multiple Member States. In these situations, the GDPR allows controllers and processors to designate a single local authority to act as the "lead supervisory authority" charged with overseeing their operations from a data protection perspective.  This has become known as the "one stop shop" approach.  The GDPR's provisions relating to "lead supervisory authorities" are meant to simplify and streamline privacy regulation, as under the Directive a company operating in multiple Member States may be subject to multiple DPAs.

This set of guidelines recognizes that the designation of a lead supervisory authority necessarily is a very fact-specific inquiry. Although it provides some generalized advice, it also includes illustrative examples and factors for companies to consider in making the determination for themselves.  To that end, the guidelines also include an annex meant to guide companies going through the designation process.  Some of the more general points are described below.

  • Identifying the Lead Supervisory Authority

    • For controllers, the GDPR provides that the lead supervisory authority should be the authority in the Member State in which the controller has its "main establishment" – in other words, the place where the controller has its "central administration" and makes "decisions on the purposes and means of the processing." The guidelines acknowledge that a controller could have multiple decision-making centers, and provide several detailed examples as to how to determine which center is the "main establishment."
  • Companies Not Established in the EU

    • If a company does not have any establishment in the EU, it cannot take advantage of the one-stop shop system and must deal with the supervisory authorities in each Member State in which it operates. Simply having a single representative in one Member State does not mean that person can serve as a "main establishment" for one-stop shop purposes. This may prove to be an especially large headache for small companies that reach out to consumers in multiple EU Member States but do not have the resources to create any EU establishments (i.e. some smaller app companies and start-ups), as they will have to expend the time and resources to tailor their compliance practices to each Member States.

Guidelines on Data Protection Officers ("DPOs")

Article 37 of the GDPR requires public bodies, as well as controllers or processors whose "core activities" involve (1) processing "special categories of data" (often referred to as "sensitive data") on a "large scale" or (2) regularly and systematically monitoring individuals, to appoint a data protection officer (DPO). The DPO is tasked with advising the company as to proper practices for GDPR compliance, among other responsibilities.  This new requirement has attracted a lot of attention, not only because it requires many companies to designate a DPO for the first time, but because the GDPR appears to provide a fairly high degree of job security for DPOs, as Article 38(3) forbids companies from dismissing or penalizing a DPO for performing his or her responsibilities.

The guidelines make clear that the DPO requirement will apply to many companies. Key points include the following:

  • Definition of "Core Activity"

    • Although the guidelines' definition of "core activity" – those activities that "can be considered as the key operations necessary to achieve the controller's or processor's goals" – is not very enlightening in and of itself, the document does provide some helpful examples of what "core activity" does not include. For example, the guidelines acknowledge that IT support and employee compensation are activities common to almost all organizations, and even though they are essential, they generally may be considered "ancillary functions" rather than a company's "core activity."
  • Definition of "Large Scale" Processing of Sensitive Data

    • As defined in the GDPR, special categories of personal data (referred to here and many other places as "sensitive data") consists of "personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person's sex life or sexual orientation." The guidelines essentially punt on what constitutes "large scale" processing of sensitive data, stating that a "standard practice" for what may be considered "large scale" may develop over time and that companies should consider a number of factors in making the determination for themselves in the meantime. The guidelines do provide a few fairly obvious examples of "large scale" sensitive data processing, such as a hospital's processing of patient data, as well as a few examples of non-"large scale" processing, such as an individual lawyer's processing of criminal convictions.
  • Definition of "Regular and Systematic Monitoring"

    • The guidelines explicitly state that "all forms of profiling and tracking on the internet, including for purposes of behavioral advertising," are considered types of "regular and systematic monitoring," thereby indicating that behavioral advertising agencies should designate a DPO.  Although the guidelines do not state so explicitly, a company that drops cookies might also be viewed as engaging in a form of "profiling and tracking on the internet."  Taken to its extreme, this could include the use of a cookie as benign as a log-in cookie triggering the requirement for a company to have a DPO.  We hope to receive additional guidance from the DPAs as to what kinds of Internet "tracking" give rise to this requirement.
  • DPO Qualifications and Job Description

    • The more sensitive, complex, and substantial an organization's data processing is, the more qualified a DPO must be. The guidelines state that a DPO must have a level of expertise "commensurate with the sensitivity, complexity, and amount of data an organization processes."
    • All DPOs should possess "an in-depth understanding of the GDPR" – so companies planning on designating a current employee as the DPO must ensure that person is up to speed come May 2018.
    • A DPO need not always be an individual, as the guidelines clarify that a team can function as a DPO, provided that a single person serves as the lead contact and tasks are clearly allocated to the different team members. Likewise, a DPO does not even need to be a company employee or team of employees, as a company may contract out the DPO's responsibilities to an outside service provider.
    • An organization must always consider the DPO's position and, if it disagrees with the DPO, it should document its reasons for not following the DPO's advice. The guidelines emphasize that a DPO cannot be terminated or otherwise penalized (i.e. via denial of promotion) for providing advice within the scope of his or her responsibilities with which the organization does not agree.

With approximately a year and a half to go until the GDPR begins to apply, additional regulatory guidance is expected. Check back here for analysis of forthcoming guidance and other GDPR developments as they become available.

European DPAs Issue First GDPR Guidance

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

Terms & Conditions and Privacy Statement

Mondaq.com (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 www.mondaq.com

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 Mondaq.com’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.

Disclaimer

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.

Registration

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 unsubscribe@mondaq.com 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.

Cookies

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.

Links

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.

Mail-A-Friend

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.

Security

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 webmaster@mondaq.com.

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 EditorialAdvisor@mondaq.com.

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 enquiries@mondaq.com.

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