Whether you are a grassroots club, professional team or a sport governing body, you will have fans, members and athletes. As a result you will be holding the personal data of many individuals as well as information relating to volunteers and employees. Data is a key asset for sports organisations the maintenance and growth of which is crucial to the ongoing development and success of the organisation and allowing them to engage with and market events to members.
Sporting organisations of all levels need to be aware of the upcoming General Data Protection Regulation, which comes into force on 25 May 2018. This new EU regulation is set to radically change the way that all organisations manage individuals' personal data with the biggest reform in data protection law for over 20 years. It is crucial that all sporting organisations have taken or are planning to take appropriate measures to ensure compliance with the Regulation as there are huge potential fines for organisations which don't comply of up to €20 million or 4% of global turnover for serious breaches.
The GDPR applies to any data controllers or data processors, so it covers organisations who collect any personal data from members, employees, fans or athletes. "Controllers" of personal data are organisations that decide how and why personal data is processed. "Processors" of personal data are those who process data on the controller's behalf. Some of the key changes that are implemented by GDPR include:
- Record keeping: - Organisations will be required to keep records of the data they process, why they process it, for how long they process it and the legal basis on which they process it.
- Notiﬁcation of breaches: – Data breaches that impact on privacy will have to be notified to the Office of the Data Protection Commissioner (the "ODPC") and any individuals that are affected within 72 hours of the occurrence of the breach. Failure to report a breach could result in a fine as well as a fine for the breach itself.
- Transparency: - The GDPR sets out the information that must be given to data subjects at the point of collection of the data. Data capture forms and privacy policies of sports organisations will need to be updated in order to fall in line with the minimum transparency requirements of the GDPR. Individuals must be told about what personal data is processed, why it is processed, the lawful basis for processing it, how long it will be retained for, who, if anyone, it might be shared with and what measures will be implemented to protect the data, especially if it is being transferred or hosted outside of the EEA.
- Consent: - While consent is not the only basis upon which data can be processed, the GDPR introduces new conditions as to how to obtain a valid consent. Consent to the processing must be given by clear affirmative action in order to be compliant i.e. the data subject must freely indicate affirmatively that they consent to how their data is to be processed. Each purpose of processing needs a separate consent and data subjects must be given an easy way to withdraw their consent at any time. Sports organisations may have to change the way that they collect data from their members and should start by reviewing how they seek, obtain and record consent of the individual at the point of collection. Ensure that the individual will know exactly what they are consenting to including direct marketing, event updates, etc.
- Children's consent: - Ensure that you have adequate systems in place to verify individual ages of members/players and gather consent from guardians of children. Consent needs to be verifiable and therefore communicated to your underage members in plain and simple language. Ireland looks set to adopt 13 as the age at which a child can consent to data processing without specific parental permission under current draft of the General Scheme of the Data Protection Bill, released in May 2017.
- Right to access: - Data subjects have a right to access their data under the current Data Protection Acts 1988 and 2003 however the time limit for responding to such requests will be reduced from 40 days to within one month. Controllers will not be able to charge for processing an access request unless they can demonstrate that the cost will be excessive. It is worth reviewing and updating procedures and planning how to handle requests within the new timelines without undue delay.
- Right to be forgotten/ Right to erasure: - The GDPR also introduces new rights in addition to the right of access. Data subjects will have the right to seek erasure of personal data concerning them without undue delay in a number of circumstances including withdrawal of consent or, for example, if a player moves clubs and the personal data are no longer necessary in relation to the purposes for which the data was collected.
- Right to data portability: - Individuals will be allowed to receive a copy of their personal data in a structured, commonly used and machine readable format, although such right only applies in limited circumstances. This could prove to be relevant in the context of performance data of players and athletes in the event of them moving clubs. It is yet to be seen whether a player will be deemed to have "provided" his or her data to a club via monitoring devices etc. such that they could request this information.
- Sensitive data: - Clubs and organisations should ensure that they know whether they hold any "sensitive data" of their players, employees or members such as data relating to the individual's mental or physical health (including injuries). Explicit consent of the person about whom the data relates will likely be required in order to process this type of data.
- Third Party Processors: - There will be direct obligations on data processors as well as data controllers. Controllers that use any third parties to process data, for example, hosting a website, then they must have a written contract in place with the host/ processor.
Data Protection Bill
Ireland will implement and apply the GDPR through a Data Protection Bill (in draft form at the time of writing as the General Scheme of the Data Protection Bill, released in May 2017). The Bill will replace the Data Protection Acts 1988 and 2003. It is important that clubs and organisations review the type of data that they have in relation to the Bill. It is noteworthy that criminal sanctions will be available against persons who obtain or procure access to personal data without the prior express or implied authority of the controller or processor by whom the data are kept and discloses the data or information to another person. In light of this, clubs and organisations should implement appropriate safeguards to prevent accidental data protection offences by club officers or members.
Steps to take now:
Clubs and organisations can take the following steps at this point to ensure that they are in a good position prior to the implementation of the GDPR.
- Ensure that the club/organisation has appropriate systems in place in the event of a data protection breach.
- Carry out a data audit to figure out what, how and why data is held by the club or organisation and to determine what the lawful purpose of holding that data is.
- Consider if consent is required and, if so, how consent is obtained from the individual players, members etc. and whether it is collected appropriately in line with Article 7 GDPR. To the extent that it has not been collected correctly, seek to refresh or enhance the consent or consider whether another legal basis for processing that personal data is applicable under Article 6 GDPR.
- Consider whether and how any sensitive data is processed within the organisation and whether appropriate systems are in place to safeguard them.
- Review data protection governance, in particular the responsibility for data protection compliance, record keeping, responding to data subject requests or enquiries on complaints from the ODPC.
- Review data security measures and, ensure that personal data is held securely i.e. that electronic documents are encrypted and password protected and that they are backed up on a regular basis and also ensure that members, employees and/or volunteers can identify when a breach has happened and that they know what they should do and who they should talk to.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.