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
Similar Articles
Relevancy Powered by MondaqAI
Wilson Elser Moskowitz Edelman & Dicker LLP
Morgan Lewis
Dickinson Wright PLLC
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Wilson Elser Moskowitz Edelman & Dicker LLP
Morgan Lewis
Dickinson Wright PLLC
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