GDPR- The New Era of Privacy Protection

General Data Protection Regulation or GDPR is the new privacy protection regulation of the European Union which was adopted on 26th April 2016 and has to come into effect on 25th May 2018. The nucleus of the GDPR is to reinforce data protection for individuals not only within the territory of EU but extends to secure export of Personal Identifiable Information (PII) from the territory of EU.

GDPR replaces the existing Data Protection Directive and aims at harmonising laws across the entire EU.

Parties Involved

  • Data Controller that is the ones who decide upon the purpose of the data.
  • Data Processors that is the ones who directly are in the act of processing of the data.
  • Data Subjects that is the citizen’s of EU who takes the services of the data controller.

Within these data controller and processors there are essentially two categories which the new legislation aims to cover:

  • A presence in an EU country of the controller or the processor.
  • Not present in EU but organisation deals in data belonging to the EU citizens.

What ‘Personal Data’ does GDPR covers?

The new legislation by the term personal data means to cover any information which is used to identify a person (natural person) this includes:

  • Basic identity information such as name, email, address, and online ID numbers;
  • Web data such as location and IP address;
  • Health, genetic, mental and biometric data;
  • Racial or ethnic data;
  • Political opinions;
  • Cultural or social identity.

Appointment of a Data Protection Officer

The legislation mandates the appointment of a data protection officer where processing activity is being carried on by public authority except for courts in their judicial capacity, also when the core activity of the controller and the processor is such that it requires systematic monitoring of the data subjects or when the processing of data relates to people involved in criminal convictions.

Key Policies

The focal point of the policy is the consent factor. Companies will now have to take proper and informed consent from the person who is sharing Personally Identifiable Information (PII), any sort of vague or confusing statements cannot be used future onwards in order to extract personal information. This is a major shift from the idea where the companies used to have a single consent box and by checking in the box users tend to consent on a number of things, as now consent has to be taken individually.

Withdrawal from consensual record of the data has to be as easy as consensually submitting the data and this is the point of convergence of the new regulation. The law now mandates the guardian to opt in for a child below 16 years in regard to any sharing of personal information.

Consumers now have enormous control over the data, they will be able to access the personal data being stored in, inspect as to the purpose for which the data is being used and have the ‘right to be forgotten’ that is ask the data controllers at any point of time to erase the data existing with them.

The new law takes into account even the measures to be taken in case of any breaches. The companies will now have to within 72 hours of becoming aware of any data breach inform the protection authority as well as the customer whose data is under threat without any undue delay.

Effect of GDPR on Websites

Websites will need to comply with GDPR in respect of both privacy policy and cookie policy. The websites now ought to have privacy policy which is concisely clear and transparent. Meaning thereby that the policy should be written in plain language rather than complicated and make it easy for the users to understand. The key is that the users have to be well informed of the data which is being collected from them.

Since GDPR covers all forms of personal data, cookie policy has came into picture. Cookies store unique information about the user thereby storing the personal information hence cookie consent has to be enabled.

Implied consent is no longer sufficient that is the users will have to expressly consent to the data which is being collected by cookie. This means that the websites which show pop up stating that ‘by using the website you agree with the cookie policy’ are no longer sufficient.

 Penalty

An organization in breach of GDPR laws will be fined up to 4 percent of annual global turnover or 20 million Euros ($24.6 million), whichever is bigger.

Impact of GDPR on Indian Market

The main question which sails through the mind of most Indians is whether GDPR will apply on Indian Data Processing Companies or is the law restricted to only the EU companies. This question demands looking into Article 3 of the regulation which has laid down the territorial scope of the policy.

Further the definition of data processor has been given a wide connotation in the legislation. It means any operation performed on personal data such as collecting, recording, structuring, storing, using, disclosing by transmission and includes erasing and destroying. Article 3 makes it precise that it shall apply to all companies and organisation whether within EU or not.

The dilemma then arises as to whether in the absence of any sort of treaty can EU legislation have such an extra territorial reach? The answer to this is simple, that the EU legislation intends to apply to only those extra territorial organisations which have EU citizens as their data subjects. The fact that it involves the citizens of their territory the law is binding on the other countries as well including Indian companies which tend to deal with EU as data subjects.

In a nutshell GDPR aims to cover any organisation in the EU that handles personal data and any individual in the EU whose personal data is handled by an organisation, wherever that organisation is based. Europe has always been a substantial marketplace for the IT’s, BPO and Pharma companies. The IT companies estimate for about 155–220 billion USD in the European member states. Thus for an Indian IT company to continue its relations with EU it has to mandatorily follow the GDPR.

Author: Shrivalli Kajaria, Intern at Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at swapnils@khuranaandkhurana.com.

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